- I Already Have a Good Health Insurance Policy. Do I Need Really Need Disability Insurance?
- What is Short-Term Disability Insurance?
- What is Long Term Disability Insurance?
- My Employer Offers Me LTD Coverage as a Fringe Benefit Cheaper Than I Can Buy it on My Own. Is the Group Coverage the Same as if I Bought My Own Individual Disability Policy?
- What is the Difference Between Individual Disability Policies and Group Disability Policies?
- Why is it So Important to Determine Whether My LTD Coverage is Under an Individual or Group Policy?
- What is ERISA And What Does It Have to Do with My LTD Claim?
- What is ERISA Preemption?
- Is My Claim Governed by ERISA?
- Can I Receive Long Term Disability Benefits And Unemployment Benefits At The Same Time?
- Does My Own Private Disability Insurance Offset Or Limit The Amount Of Social Security Benefits I Receive?
Filing a Claim
- Do You Have to Be Permanently Disabled to Get Long Term Disability?
- How Do I Go About Filing a Disability Claim?
- How to Make a Claim for STD or LTD Benefits Under ERISA?
- Does The Insurance Company Have Access to My Hospital Records if I Do Not Give Them Consent?
- What is Your Residual Functional Capacity, or RFC?
- I Have Multiple Doctors Treating Me for My Disability. Is it Okay to Send More Than One Doctor’s Letter to the Insurance Company?
- Can a Doctor’s Letter Win a Disability Case or Get You Approved for Benefits?
- Can My Claim Be Denied for Failure to Follow Doctors Orders?
- What is a Medically Determinable Impairment?
Delays and Denials
- Why Is My Insurance Company Delaying Payment on My Claim?
- How Do Delays Benefit the Insurance Company?
- I Filed My Individual Disability Insurance Claim and it Has Been Denied. What Do I Do Now?
- Doc Says I Can’t Work, But The Insurance Company Won’t Approve Me. What Should I Do?
- When is an Insurance Company Considered to Have Committed a “Bad Faith” Denial of a Disability Claim?
Hiring a Lawyer
- Why is it So Important That I Appeal?
- Do I Have to File an Appeal in Every Case?
- Why Should I Bother Appealing with the Same Insurance Company That Has Already Denied My Claim?
- Do I Have a Limited Amount of Time to Appeal the Denial of My Disability Benefits?
- How Do I Appeal a Denial of Benefits on My Own?
- Oops. I Missed The 180-Day Appeal Deadline. What Do I Do Now?
- Should I File a Complaint with My State’s Department of Insurance?
- How Long Does the Insurance Company Have to Make a Decision on My Appeal?
- Can I File a Lawsuit Against the Insurance Company Without First Filing an Appeal?
- How Long Do I Have to File a Lawsuit After the Insurance Company Has Advised Me That I Have “Exhausted” My Administrative Appeals?
- What is the Arbitrary and Capricious Standard?
- Can an Insured Sue for Future Policy Benefits and Attorney’s Fees Insured When Suing an Insurer for Long Term Care Disability Benefits?
I Already Have A Good Health Insurance Policy. Do I Need Really Need Disability Insurance?
Your health insurance pays for your medical bills, but what about your other monthly expenses in the event that you are unable to work due to a disability? Disability insurance is meant to be a wage replacement in such cases where you cannot work due to a disability. An individual disability policy will typically pay you sixty percent (60%) to seventy percent (70%) of your monthly earnings leading up to the onset of your disability. You can purchase coverage that will cover you so long as you cannot perform the substantial duties of your own individual job, and you can buy coverage that will cover you for two (2) years, five (5) years, or until retirement age (typically age 65).
So the answer is yes, you should buy as much coverage as you can.
What Is Short-Term Disability Insurance?
Short Term Disability benefits (sometimes referred to as “STD” benefits for short) provide vital income protection to individuals immediately after the onset of a disabling condition.
Short Term Disability insurance is designed to replace a specific percentage of your pre-disability income during the first few weeks or months after the onset of a disabling illness or accident. Policies typically provide coverage for a period of six months to a year. Short Term Disability benefits are often an important source of income until Long Term Disability benefits begin. You can typically purchase Short Term Disability Insurance benefits from an insurance agent or through your employer.
Some benefits you might obtain include:
- Weekly benefit payments, which will pay you a portion of your pre-disability earnings on a weekly basis for the term length of your policy; and
- Comprehensive Rehabilitation Program benefits, which can provide benefit incentives related to vocational (job) rehabilitation, dependent (child) care, workplace modifications and more.
What Is Long Term Disability Insurance?
Group policies covered by ERISA and private individual disability policies are designed to protect your income in the event that you are unable to work due to sickness, injury or an accident. Usually, these policies pay approximately 60% of your earnings. There is also usually built in elimination or waiting period where the benefits are not payable until a certain period after you stop working, usually after you’ve been unable to work for 90 or 180 days. A separate insurance policy for Short Term Disability benefits is typically used to pay disability benefits until Long Term Disability benefits kick in.
Why You Should Consider Long Term Disability Insurance
The United States Census Bureau has indicated that you have a 1 in 5 chance of becoming disabled before retirement age. In 1997, the Census Bureau issued the results of a study showing that more than a 152,000,000 people between the ages of 21 and 64 (which is a prime working-age for most Americans) have some form of disability. As such, this is a particular area of concern—not only for employees—but also for self-employed men and women who should seriously consider having a long term disability policy.
My Employer Offers Me LTD Coverage as A Fringe Benefit Cheaper Than I Can Buy It on My Own. Is the Group Coverage the Same as If I Bought My Own Individual Disability Policy?
No. They are not the same. It is almost always better to have an individual policy rather than a group policy. First of all, the monthly benefits are tax-free if you pay the insurance premiums yourself. If the premiums are paid by a business employer, you may have to pay tax on the benefits. Moreover, if the insurance company does not pay a claim, your legal rights with an individual policy are very different from your legal rights with a group policy. In short, your legal rights are much more favorable with an individual policy than with a group policy. For these reasons, you should purchase an individual policy over a group policy.
What Is the Difference Between Individual Disability Policies and Group Disability Policies?
The major difference between individual and group policies is that individual policies are underwritten with respect to the individual purchasing insurance coverage, while group policies are not individually underwritten. Instead, group policies are issued by disability insurance companies based on certain underwriting assumptions related to the general health of a group of people. Individual policies are typically bought and paid for by the insured, separate and apart from an employer. Group coverage, on the other hand, is usually offered by an employer or union, and the premiums are paid (in whole or in part) by the employer. There may be circumstances where an employer will purchase and pay the premiums for an individual policy on behalf of an employee. Conversely, an individual may personally obtain group LTD coverage unrelated to his or her employment by joining a group that has group coverage available for its members.
Why Is It So Important to Determine Whether My LTD Coverage Is Under an Individual or Group Policy?
The remedies available to an insured under an individual disability policy are vastly different than those under a group policy. If the insurance coverage is under a group policy provided by the insured’s employer, the policy is likely governed by ERISA. If the policy is governed by ERISA, then certain state laws that offer consumers protection and remedies for relief are “preempted” by ERISA regulations. In short, if the LTD plan is governed by ERISA, the disability insurance company has no exposure to bad faith damages and thus has no real incentive to pay the claim.
What is ERISA and What Does it Have to Do with My LTD Claim?
ERISA stands for the Employee Retirement Income Security Act of 1974. It is a set of federal regulations that apply to insurance policies obtained through your employer, union, or employee organization.
Congress originally passed ERISA to protect large pension funds (hence the “Retirement Income” part of the name). As you may recall, several decades ago there was very little protection to employees’ pension funds if the employer went bankrupt or if the employer decided to raid the pension funds. Thus, Congress enacted ERISA to protect employees’ retirement pensions. Unfortunately, the insurance companies have used their power and influence to broadly expand the reach of ERISA to other “fringe benefits” and employee benefits. In 1986, the U.S. Supreme Court decided that ERISA governs employer-provided insurance benefits in addition to employer-provided pension plans. Now ERISA applies to most all employee benefits, including health, life and disability insurance – and not just pensions. ERISA “preempts”, or supersedes, state laws that govern employee benefit plans.
What to Do If You Need to Appeal a Denial Under ERISA
If you have a disability claim that is subject to ERISA regulations, you must be sure to take all appropriate actions for a timely appeal the denial of your benefits.
ERISA requires that you “exhaust” all “administrative remedies” before you can file a lawsuit. This means you may have to file several appeals directly with the insurance company before you can take your case to court. In most instances, you must file your appeal within 180 days from the date on your denial letter. However, you should read the last few pages of your denial letter from the insurance company. The insurance company typically tells you: (1) the time limit to file your appeal and (2) the address where you should send the appeal.
You do not necessarily require an attorney to appeal your denial of benefits, but it may be to your benefit to retain the assistance of an attorney to help you in your claim with the insurance company.
What is ERISA Preemption?
Courts have determined that all State laws affording remedies to insurance claimants (insureds) for the improper denial of employer-provided insurance benefits do not extend beyond the limited remedies afforded by ERISA. State laws, including “common law” and state statutes, are “preempted” by ERISA. For example, any right under Florida law to recover “extra-contractual” damages for the bad faith breach of an insurance contract is preempted and not available under ERISA regulations.
Is My Claim Governed by ERISA?
If you are covered by a Group Long Term Disability Policy through your employment, your claim is probably governed by ERISA. As stated throughout the remainder of this website, if you did not obtain disability coverage through your employer or employee group, and instead purchased it as an individual policy from an insurance agent or broker, then there is a good possibility that your disability claim will not be covered by ERISA and your legal options and remedies are more favorable. Moreover, church and governmental (including most City and University) employees are also exempt from ERISA.
What to Do If You Are Denied Coverage for a Non-ERISA Policy
If you have church policy, a governmental employee policy, or an individual disability policy purchased directly from an agent or broker then you may not have to appeal the denial before filing a lawsuit. In these instances, you should consult an attorney immediately. You can reach The Ortiz Law Firm at (888) 321-8131.
Can I Receive Long Term Disability Benefits and Unemployment Benefits at the Same Time?
I’m often asked by prospective clients whether they can obtain unemployment benefits and Long Term Disability (“LTD”) benefits at the same time. My answer is: “It depends on your insurance policy.”
I’ve looked around the web and been shocked by many other answers to this question. Most say that it would be totally inconsistent for you to claim unemployment while applying for LTD benefits. I understand the logic as it is often used in my Social Security disability claims. The logic is this: In order to receive unemployment benefits, you must attest to the unemployment office that you are ready, willing and able to work. To obtain disability benefits, you must be unable to work. At first glance, these concepts are completely inconsistent. You cannot tell one agency that you can work but are unable to find a job and tell another agency that you cannot work due to a disability.
However, the definition of disability is different in insurance policies than it is with the Social Security Administration. I said, “It depends” above because you must carefully read the definition of disability under your policy. Under most policies, the definition of disability (for the first two years of the policy) is the inability to perform the material duties of your own occupation (commonly referred to as “own occ” for your “own occupation”). This definition is critical. Social Security generally defines disability as the inability to perform any occupation (commonly referred to as “any occ” for “any occupation”). You may find additional information about this on the web when you search for “own occ vs. any occ”.
Why bring up this distinction? Because it relates to the original question. You may be disabled from working at your own occupation, but able to perform other work – and yet unable to find other work.
Perhaps an example will help clarify things. Let us assume Sue Smith is an orthopedic surgeon. Dr. Smith performs surgeries all day every day. However, Dr. Smith begins experiencing tremors in her hands that happen frequently throughout the day. If she has an “own occ” policy, then she will likely be found disabled for disability benefits because she cannot perform surgeries with her tremors. However, she may be capable of other types of work. With her medical training, although she cannot perform surgeries, she may be able to do an administrative job in a doctor’s office. However, in a bad economy, she may have difficulty finding such a job. No one will hire her, so she files for unemployment. She is eligible for unemployment because she is ready, willing and able to perform work (other than as a surgeon); she just is unable to find work.
In sum, we have found circumstances where a claimant is eligible for both long term disability and unemployment. In the above situation, the doctor is: (1) disabled from her own occupation and therefore eligible for disability; and (2) able to perform other work, but unable to find work, and therefore eligible for unemployment.
The lesson learned here is that you cannot assume that the general rule will apply to all situations and that you must carefully read the disability insurance policy. Because these issues can be complicated, you should consider hiring an experienced disability attorney to assist you in your claim. Mr. Ortiz has experience in handling long term disability claims. He can be reached at (888) 321-8131.
Does My Own Private Disability Insurance Offset Or Limit The Amount Of Social Security Benefits I Receive?
That depends on whether you have Social Security Disability Insurance Benefits or SSI. If you have SSI benefits, then other income, such as private disability insurance benefits, may reduce the amount that you receive in SSI. However, if you have Social Security Disability, then there is no reduction of Social Security benefits.
Do You Have to Be Permanently Disabled to Get Long Term Disability?
You do not have to be permanently disabled to receive long term disability benefits. It is common for people to receive benefits until the policy expiration date or retirement; it is not a requirement that you be permanently out of work. Some people even have their medical condition improve enough where they can return to work.
When you are suffering from an illness or injury, you are required to use the rest of your short term disability benefits before applying for long term disability. Click here for information to keep in mind when filing a short term disability claim.
Just like when you are unexpectedly involved in an accident or diagnosed with a severe illness, your recovery period can also be surprisingly long. Although you may want to return to work, you may not be able to quickly.
Here is an example: You are diagnosed with Hepatitis C and begin treatment, which the doctor says will only keep you out of work for up to 12 weeks. After your first treatment, you experience liver failure due to an unexpected complication and have to wait for a transplant. Or you are involved in an accident that requires extensive physical therapy.
Can You Still Receive Long Term Disability Benefits If You Go Back to Work?
The answer is yes and no. If you return to work, even on a part-time basis, you will probably no longer qualify for LTD benefits. You must review your long term disability insurance policy to determine whether part-time work or work in another capacity still qualifies you for benefits.
But you could still receive benefits from the time that you were disabled and unable to work. If you lose your benefits and then discover that it’s too hard to continue to work, you will have to refile, which leaves you without monthly income.
Although permanent disability is not required to receive benefits, total disability is. Total disability is when you will no longer be able to do any substantial work or return to the workforce.
How Do I Go About Filing A Disability Claim?
How you file a disability claim depends on the type of plan you have, as follows:
If your policy is part of a group plan, you should contact your human resources manager to obtain a copy of your summary plan description and a disability claim application.
If you purchased an individual disability policy, you should contact your broker or insurance agent for an application.
Under either scenario, you can always obtain the necessary paperwork directly from the insurance company.
You May Need Help to Complete the Application
You will find that the application is very long and has numerous forms that must be filled out. The instructions can often be confusing to someone who is going through this process for the first time. Keep in mind that one wrong answer could mean that your claim will be denied. You should seriously consider seeking assistance from an experienced attorney in applying for your disability benefits.
How to Make A Claim for STD Or LTD Benefits Under ERISA?
The Required Administrative Process in a Claim for Benefits under ERISA
The key to an ERISA disability benefits claim is to make sure to follow all required steps in the administrative process. Claimants must “exhaust” their administrative remedies before filing a lawsuit. Failure to exhaust one’s administrative remedies may result in significant limitations on the standard and scope of court review in a lawsuit. This is why everything you do in the administrative claims process may determine whether you are ultimately successful in your claim should you have to go to court.
Step One is to bring a claim to the plan administrator. A claim is a “request for plan benefit . . . made by a claimant in accordance with a plan’s reasonable procedure for filing benefit claims.” 29 C.F.R. §2560.503-1(e). As set forth in Abdel v. U.S. Bancorp, 457 F.3d 877 (8th Cir. 2006), a claim for benefits is made when claimant seeks benefits. Compare another case, Layes v. Mead Corp., 132 F.3d 1246 (8th Cir. 1998, wherein the court decided that there was no claim for benefits until formal procedures for filing claim are satisfied.
Typically, an application for benefits consists of three parts:
- An application with detailed information from the claimant;
- Detailed information from the employer; and
- The attending physician statement.
Failure to complete any of these forms can be fatal to a claim.
In the case Mitchell v. Equitable Life Assur. Soc’y of U.S., 310 Minn. 219, 224, 245 N.W.2d 618-620-21 (1976), the claimant was barred from filing suit for failing to supply the employee’s statement and physician’s statement.
There is also usually a requirement of a timely notice of claim and proof of loss or proof of claim consistent with your state’s insurance laws. However, late notice will usually only bar a claim where there is prejudice to the plan’s insurer. The notice prejudice rule that applies to an insured ERISA plan was set forth in UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358, 369 (1999).
Step Two is to exhaust all mandatory administrative appeals. Most long term disability insurance policies/plans have an internal appeal process, whereby you have the right to file an appeal of a denial directly with the insurance company. This right becomes a duty if you want to file a lawsuit. That’s because you cannot file a lawsuit unless you have gone through all mandatory appeals directly with the insurance company.
Most LTD policies have one of the following appeal structures: (1) two mandatory appeals; (2) one mandatory appeal; or (3) one mandatory and one “optional” appeal.
Does The Insurance Company Have Access to My Hospital Records if I Do Not Give Them Consent?
No, you have a right to privacy, especially under HIPAA laws. Therefore, no medical provider, including hospitals, urgent care, and doctors should give access to an insurance company without your express consent
What Is Your Residual Functional Capacity, Or RFC?
In order to know whether you can do your job (or any other work in the economy), the Long Term Disability (LTD) insurance company needs to know what you are still able to do (your “functional capacity”), after considering the effects of your disability (“residual”). For example, if you can still sit and type for extended periods of time, but you cannot stand or walk more than two hours total in an eight hour day, your residual functional capacity is such that you may be able to perform sedentary work but not light, medium or heavy-duty work.
How is Your Residual Functional Capacity (RFC) Determined?
To learn what your residual capabilities are, the insurance company may ask for you to take an Attending Physician’s Statement (APS) form to your doctor (this form is also known as a Residual Functional Capacity form). If the insurance company claims handler does not believe the APS is sufficient (for example, if the doctor’s responses on the form are totally inconsistent with the medical records in the claim), the adjuster may schedule you an appointment to attend an “Independent Medical Examination” by a doctor hired by the insurance company. This doctor will then perform an RFC (residual functional capacity) assessment for your claim. The examiner will determine what level of exertion you are capable of performing, and what restrictions you have that may limit the jobs you can do. The medical examiner may also review your medical records and your doctor’s notes about your functional abilities and restrictions to come up with your RFC. (For more information about RFC forms, see our article on the RFC form.)
What Level of Activity Are You Capable Of Performing?
Your physical RFC will determine whether you can perform sedentary, light, medium or heavy-duty work. For example, if your doctor has restricted you to walking and standing no more than two hours total in an eight hour day, your RFC will be for sedentary work. Here is a more detailed breakdown of the various exertional levels:
Sedentary work. A sedentary job is one that is primarily sitting, with occasional walking and standing. To perform a sedentary occupation, you usually do not need to lift and carry more than ten pounds at a time, and you may be required to occasionally lift or carry things like files or small tools.
Light work. Light work typically requires frequent walking and/or standing, as well as the ability to reach, push and pull with your arms or legs. Light duty jobs typically require the ability to lift and up to 20 pounds occasionally, and up to ten pounds frequently. If one can perform light work, one is generally considered capable of performing sedentary work.
Medium work. A medium-duty job typically requires one to be able to lift and carry up to 50 pounds at a time, and the ability to frequently lift and/or carry up to 25 pounds. If one can perform medium work, one is generally considered capable of performing light and sedentary work.
Heavy work. Heavy-duty work typically requires the ability to lift and carry up to 100 pounds at a time, and the ability to frequently lift and/or carry up to 50 pounds. If one can perform heavy work, one is generally considered capable of performing medium, light, or sedentary work.
Very heavy work. Very heavy work typically requires the ability to lift and carry objects that weigh more than 100 pounds, and the ability to frequently lift and/or carry 50 pounds or more. If one can perform very heavy work, one is generally considered capable of performing all other levels as well.
Your RFC will also include any non-exertional restrictions, such as not being able to stoop, use your fingers, or remember instructions.
Your mental RFC will determine whether you can perform work-related mental activities. When evaluating the claimant’s mental residual functional capacity, the claims handler will look at four primary functional areas: (1) understanding and memory; (2) social interactions; (3) sustained concentration, persistence, and pace; and (4) adaptation to changes in the work environment.
Thus, a mental RFC form completed by a mental health professional (such as a psychologist or psychiatrist) should make reference to a claimant’s mental impairments due to the claimant’s mental conditions (for example, poor memory, decreased energy, illogical thinking, and so on). The mental RFC should also opine as to the claimant’s ability to persist in the areas of concentration and attention, as well as a claimant’s ability to interact socially in work settings, assimilate new information, and successfully engage in SRRTs (simple, routine, repetitive tasks).
How Your RFC Is Used
If your claim is still within the “own occupation” period, the LTD disability claims examiner will first use your RFC to determine if you can be expected to do your own job. For example, if your prior job was sedentary and your RFC is for sedentary work (or higher), the claims examiner will likely find you should be able to return to your job unless your RFC identifies further non-exertional restrictions (non-exertional impairments may include mental or emotional limitations, such as memory problems from a psychiatric or neurological disorder, or an inability to concentrate).
If your claim is within the “any occupation” period, then the claims examiner will review your RFC to determine whether you could return to any job in the economy.
Note: to be considered able to work, you should be able to work full time, attend work regularly, be productive at work, and not need to take frequent rest breaks.
I Have Multiple Doctors Treating Me for My Disability. Is It Okay to Send for Than One Doctor’s Letter to The Insurance Company?
The simple answer is “yes”. If you are seeing multiple doctors for your disability, they can and should each provide a doctor’s letter. In fact, it is a “best practice” to have at least two doctors provide you with a doctor’s letter to give the insurance company. For example, if you are being treated by your primary doctor and a cardiologist for a heart condition, you should ask both to provide you with letters. And if you are also seeing another specialist – like a hematologist, or blood doctor, you should also request a letter from that doctor.
When requesting doctors’ letters, it is best to request them from doctors that have a relationship with you. A doctor’s letter from someone you only saw once may not carry as much weight. For example, if you only saw a cardiac surgeon one time to perform surgery and the surgeon was not involved in your ongoing care, then that doctor’s opinions may not add much value to your disability claim.
It is not appropriate to ask doctors that treated you in the past, well before your disability, to provide a statement. Similarly, the statements from your physicians should only reference your current disability and you should consider whether the doctor mentions medical conditions that might either (a) have a restricted time limit for the payment of benefits or (b) exclude you from coverage because it is a “pre-existing condition”.
For example, let’s say your policy restricts payments for mental health disorders to 24 months of payments. If you ask your primary (who has been your doctor for the past 12 years) to write a statement, you may not want the doctor to mention mental health problems like depression if your physical problems are disabling on their own, separate and apart from the depression.
Moreover, if your claim has a “pre-existing exclusion” clause that may apply to your case, you may not want your doctor to include in a letter comments about a prior injury that could prevent you from qualifying for benefits. This has the potential to be used against you by the insurance company to claim you had a pre-existing condition that contributed to your disability.
Make sure that your doctors write the right kind of statement, which is referred to as an evidence statement. A good quality statement from your doctor will help your case when applying for long term disability. Your medical source statement should include:
- Physical and mental limitations from your disability;
- Reference objective medical evidence to prove limitations;
- Explanation of how the evidence supports their conclusions;
- The treatment plan for your disability; and
- Examples of supporting evidence such as lab results, x-rays, MRI and CT scan results.
There is also a report that can help answer many of the same questions, and it’s usually required by the insurance company, called a Residual Functional Capacity (RFC) report. This report should not replace your doctor’s letters but provide additional evidence that supports your doctor’s statements.
A Residual Functional Capacity report will answer questions like:
- How much can you lift? How often can you lift it?
- How much can you carry? How often can you carry it?
- How far can you walk without resting?
- How long can you stand or sit at a time?
- Can you bend, stoop, kneel, or reach overhead?
You can provide as many letters from your doctors as you think are necessary to prove your case. Request good quality statements from your treating doctors and ask them to cover your limitations, provide medical evidence, and outline your treatment plan.
Most long term disability claims are denied based on the lack of medical evidence. Work with your doctor’s office to be sure you have everything you need to have your claim approved.
Sending more than one doctor’s letter is completely acceptable and encouraged if you are being treated by multiple doctors for your disability. Using the guidelines we provided above, you can help build a strong claim and get approved much quicker.
If you need help, we can provide you with a free consultation call with no obligation to use our firm. During the call, we will answer any questions you may have. If you choose to use our law firm, we won’t get paid until you do!
The experienced disability attorneys at the Ortiz Law Firm can help you through the disability denial and appeals process. They only get paid if you win. You can seek help without worrying about upfront costs or unexpected bills. Our law experts will focus on your case so you can focus on your illness.
The Ortiz Law Firm has successfully represented people in disability cases across the United States. To see how we can help you win your long term disability case, call us at (888) 321-8131.
Can A Doctor’s Letter Win A Disability Case or Get You Approved for Benefits?
A letter from your personal doctor or physician that states you are disabled and unable to work will not guarantee that your long term disability (LTD) claim will be approved. However, depending on the form and substance of the letter, such a letter can greatly improve your chances of being approved.
In most LTD cases, generic letters from physicians will have little impact on the insurance company’s disability decision. This is due to the fact that doctors submit letters that are so short and lacking in detail in most cases that the letter’s value to a disability examiner is practically non-existent. For example, if all the doctor does is summarize your medical diagnoses and conclude that you are disabled and unable to work, then that letter will not assist the claims handler in understanding why you are unable to work. Unfortunately, this type of letter is the most common one we see from disinterested physicians.
So what makes a good letter? We know that a detailed statement from a doctor who is knowledgeable about a claimant’s medical problems can make all the difference as to whether or not a disability claimant is approved for disability benefits. A good statement goes beyond reciting the patient’s medical diagnoses and gives an opinion as to the patient’s resulting functional limitations.
This type of statement is called a “medical source statement” or “residual functional capacity” evaluation. These medical source statements help in the evaluation process because most insurance company claims adjusters are not medical professionals. They rely on the medical professionals to identify the claimant’s level of impairment; therefore, adjusters give weight to detailed opinions of medical professionals, particularly those who are directly involved in the claimant’s medical treatment. The claims examiner should accept a treating doctor’s medical source statement as true and accurate unless they have good reason to reject it (such as where the doctor has no credibility or is not a specialist familiar with the claimant’s particular illness or injury).
To help a long term disability case, the doctor’s medical source statement should be:
- Objective; and
- Specifically assess the claimant’s physical capacity or mental capacity and the physical or mental limitations that result from the claimant’s medical condition and problems.
The statement should explain why the patient has certain limitations (for example, the patient cannot stoop because of a herniated disc in the back), and also be supported by the medical evidence on record in the claim (for example, include an X-ray or MRI showing degenerative discs).
There is a form that accomplishes these goals, known as an RFC form. (RFC stands for residual functional capacity.) To learn more about RFC forms and to download a free RFC form you can give to your doctor, see our downloadable RFC page.
Can My Claim Be Denied for Failure to Follow Doctors Orders?
Failure to follow a doctor’s orders or prescribed mode of treatment is an easy way for your claim to be denied. When you fail to follow treatment recommended by an attending physician, then you are considered to be a “non-complaint” patient. Your noncompliance will be noted in the medical records.
Examples of Failing to Follow Orders Are as Follows:
- Continuing to smoke while claiming disability for a heart condition or breathing problem, such as COPD;
- Missing multiple appointments with the doctor;
- Failing to follow prescribed medical treatment;
- Failing to attend physical therapy when recommended;
- Failing to take medications as prescribed to you by the doctor;
- Failing to go through additional counseling sessions when recommended by a psychiatrist or psychologist;
- Failing to change your diet or lose weight when a doctor recommends such to control diabetes; and
- Failing to cease taking illegal drugs or alcohol when recommended by the doctor.
These are just some examples of treatment that may be recommended by a doctor that gets ignored.
Your best chance of maximizing your chance of winning your disability claim is to be in a position to testify that you still continue to suffer from a severe impairment despite doing everything your doctor has asked of you.
What is a Medically Determinable Impairment?
The statutory definition of disability specifies that you must have a “medically determinable physical or mental impairment”.
A medically determinable physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and/or laboratory findings-not only by the individual’s statement of symptoms.
By definition, those impairments which cannot be proven by an objective medical test (such as an X-Ray or MRI) are more difficult to prove. For example, the diagnosis of fibromyalgia relies significantly on the patient’s subjective complaints. There is not an X-Ray that will prove the existence of fibromyalgia. That is why these types of soft tissue disorders are more difficult to prove than say a “broken back”, which can be proven with an MRI. Moreover, the above definition means that mental disorders are difficult to prove. Not impossible to prove. Just more difficult because you cannot exactly prove a disorder like bipolar disorder with an X-Ray.
In short, some disorders are more difficult to prove than others. This is why the claimant’s credibility and medical records are so important.
Why Is My Insurance Company Delaying Payment on My Claim?
My insurance company seems to be engaging in delay tactics. They keep asking for the same information over and over, they say they are still processing my records, and they still have not made a decision on my claim. Now they tell me they still require additional information. Why are they doing this, and are they allowed to do this?
As for whether they are allowed to engage in delay tactics, the answer is yes. ERISA rules and regulations allow for insurance companies to invoke automatic extensions of time in which to make a decision. All the insurance company has to say is that they don’t yet have all the information they need.
How Do Delays Benefit the Insurance Company?
There are several answers to the first part of this question. First, insurance companies do not like to pay out on claims. It hurts their financial bottom line. The more premium money they keep, the better the insurance companies look to their investors. Second, it is a tactic to “starve you out.” They know you are without the disability insurance income, and they know some claimants return to work—any kind of work—to pay the bills. They also know that many workers who become disabled are too sick and tired to put up a fight and that many claimants will simply give up. Don’t give up. Don’t give them the satisfaction.
Doc Says I Can’t Work, But The Insurance Company Won’t Approve Me. What Should I Do?
Long term disability insurance companies want to get an unbiased opinion and concrete proof that you cannot work before they will approve your LTD claim. A note from the doctor may be okay with your employer, but to receive long term disability benefits, you will need a shred of more evidence. The documentation that you will need to gather is referred to as your “administrative file.” Everything that is relevant to your case must be in your administrative file, including all the documentation that you want to present as proof of disability. In addition to medical and lab reports, insurance companies want to know the following:
- How much time does your doctor expect you to be out?
- Does your doctor anticipate you being released back to duty?
- Can you sit down and for how long?
- Can you stand and for how long?
- Can you bend or reach overhead?
If your doctor provides the insurance company with enough evidence that you cannot do any of these tasks and doesn’t expect you to be able to work in the near future, you may have a case for long term disability benefits. To prove your case, ask your doctor to complete a functional capacity report. This will help outline the tasks that the doctor believes you are not able to do safely without injuring yourself further.
It is important to know the most common reasons LTD claims are denied:
- Incomplete medical information. One of the most common reasons claims are denied is due to missing or incomplete medical information. Forgetting to list a doctor’s office address or listing an incorrect address means the insurance could not verify your medical information. Forgetting to list all of your doctors and medications can also cause a denial.
- Missed appointments. When you are sick and not working, it can become difficult to make doctor’s appointments; especially if you are required to make a co-pay each visit. However, the insurance company will say that you do not need medical attention if you are missing appointments. It’s very important to make all doctor’s appointments as scheduled.
- Doctor’s Notes. It is very common for doctors to only write down the clinical symptoms and not make notes regarding pain, depression, low energy level, etc. Be sure that your doctor documents this in your file as proof that you are suffering from these symptoms as well.
If you rely on the insurance company and doctor’s office to communicate, you could be waiting a long time. The best thing to do is to take the initiative to gather the documents that you need from your doctor, including the functional capacity report. Make yourself a copy, and then submit them to the insurance company yourself. Note: There may be a fee from your doctor’s office for completing forms. It is important to know the harmful elements that can hurt your case too.
If you have already received a letter of denial, it would be a good idea to contact an LTD attorney that can help you navigate the process with the insurance company. An experienced LTD attorney can help you gather all the documents you need to create a complete administrative file. They can also help you stay on track with your timeline. Most cases have a deadline for appeals.
It’s important to note that your Long Term Disability attorney does not get paid until you do so that you can proceed with your case without fear of upfront legal bills or costs.
Although based in Florida, the Ortiz Law Firm represents claimants across the United States.
If you’d like to speak to a Pensacola Long Term Disability Insurance Attorney about your denied claim, contact us at (888) 321-8131 to schedule a consultation. We can help you evaluate your claim to determine if you will be able to access Long Term Disability Benefits and how to move forward with the process.
I Filed My Individual Disability Insurance Claim and It Has Been Denied. What Do I Do Now?
It depends on the language of your disability policy. For that reason alone, you should seek legal advice from an experienced disability insurance attorney. You don’t want to make the mistake of appealing the claim on your own when it may not even be necessary. Some policies require an appeal before litigation and others do not. It is easy for individual policyholders who are not trained to read insurance policies to misread or misunderstand the disability policy. For these reasons, you should seriously consider contacting an experienced attorney before you make a terrible claim or appeal mistake.
When Is an Insurance Company Considered to Have Committed A “Bad Faith” Denial of A Disability Claim?
According to Black’s Law Dictionary, the definition of bad faith is: “The opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” In contract law, there is the concept of “the covenant of good faith and fair dealing,” which means the insurance company has certain duties in carrying out its obligations according to the insurance policy contract. The following are examples of an insurance company’s bad faith after a policyholder files a claim for disability:
- The insurer fails to conduct a reasonable and full investigation into the claim;
- The insurance company acts unreasonably in evaluating the claim;
- The insurer unfairly delays the processing of your claim;
- The insurance company wrongfully denies the claim; and
- The insurance company unreasonably delays payment of benefits or pays less than the full value of benefits owed under the policy.
If your long term disability claim is governed by ERISA, then you cannot sue for bad faith or punitive damages. This is because ERISA is a federal law that pre-empts state law claims such as bad faith and punitive damages. You can only sue for the benefits due.
An Experienced Disability Attorney Can Help You Navigate an ERISA-Governed Appeal
In ERISA disability litigation, the terminology used is a little different than “bad faith.” Federal courts will review the insurance company’s decision to determine whether the denial was “arbitrary and capricious.”
Without legal guidance from an attorney, claimants may unknowingly hurt their ability to prove the insurance company’s bad faith. For example, the claimant may allow the insurance company multiple opportunities to deny the claim by filing multiple appeals when multiple appeals were not required before making the carrier accountable in a lawsuit. As stated above, whether to appeal is a decision that you should make only after consulting with an experienced disability attorney.
Do I Need A Lawyer in My LTD Claim?
ERISA is a framework of complex federal laws, regulations, and case law that apply to group disability claims. Most attorneys, including those who handle Social Security disability claims, do not have the knowledge or experience to properly handle an ERISA-governed LTD appeal or federal lawsuit. A general practice attorney may miss administrative deadlines or fail to address critical issues in the appeal process. Unrepresented claimants risk making the same mistakes. So my recommendation is Yes, you should consult with a lawyer in your LTD claim.
Why Hire the Ortiz Law Firm?
The Ortiz Law Firm is dedicated to compassionate client service and outstanding results. Mr. Ortiz has a decade of experience in representing disability claimants in seeking benefits. The Ortiz Law Firm is not a “mill” firm that will represent just anyone that calls. The Ortiz Law Firm accepts approximately one in ten applicants that request legal assistance.
Mr. Ortiz has the support of several paralegals and an office manager, working together to deliver the highest level of legal representation.
If you have questions that are not covered in our “Frequently Asked Questions,” call us at (888) 321-8131.
When Should I Hire A Lawyer?
The most critical stage in an LTD claim for disability insurance benefits is the appeal stage. Once the internal “administrative” appeals directly with the insurance company have been exhausted and a lawsuit has been filed, no new evidence can be introduced to the court. You do not testify. Your doctors do not testify. You cannot introduce any new evidence to the court after your appeals are completed. There are no trials, hearings, or depositions. The court simply reviews the administrative claim file and does so with a legal obligation to defer to the insurance company’s decision. It is essential that an experienced LTD attorney review the claim file at the appeal stage in order to determine what additional medical and/or vocational proof needs to be added to the administrative file and to determine what adverse information needs to be rebutted.
Why Is It So Important That I Appeal?
The Employee Retirement Income Security Act of 1974 (“ERISA”) requires you to exhaust your administrative remedies before you can file a lawsuit. The internal appeal process allows the insurance company an opportunity to correct its mistakes and avoid a lawsuit. If you do not give the insurance company the chance to right its own wrongs first, most courts will not allow your lawsuit to proceed.
The internal appeals process is also a very important opportunity for you, the disabled claimant. It gives you a chance to load your claim file with information supporting your disability claim and to correct any misconceptions. It is imperative that you submit everything that may possibly help prove your disability and your credibility. (See “How do I appeal my own denial of disability benefits?”)
Do I Have to File an Appeal in Every Case?
As stated in response to the previous question, it all depends on how you obtained the policy. If the policy is through a private employer, employee organization or union, then you may be required to go through the appeal process before going to court. If you have an individual policy or a policy provided by a government employer or church employer, then you may not be required to file any appeals before resorting to litigation. Because these rules can be very complicated, you should obtain a free consultation from an experienced disability attorney to explain to you your rights. Feel free to call us at (888) 321-8131.
Why Should I Bother Appealing with The Same Insurance Company That Has Already Denied My Claim?
You must file an appeal with your insurance company because you are required to exhaust all mandatory internal appeals before filing a lawsuit against the insurance company. If you file a lawsuit without “exhausting” the internal appeals process, your claim will be dismissed. By the time your claim is dismissed in court, your internal appeal deadline with the insurance company might have already expired.
Do I Have A Limited Amount of Time to Appeal the Denial of My Disability Benefits?
Yes. A disability insurance claim is not like an automobile accident claim, where you may have years after the incident to file a lawsuit. Under ERISA rules and regulations, you only have 180 days from the date on the insurance company’s denial letter to file your appeal. It is critical that you give notice of your appeal before this deadline.
Note: Some long term disability policies provide for a second level appeal, and the deadline is often shorter than 180 days.
How Do I Appeal a Denial of Benefits on My Own?
If you insist on appealing on your own without legal representation, you should follow the steps below:
Read the entire denial letter carefully from start to finish. Read it again a couple more times. The insurance company is legally obligated to advise you of the specific reasons it is denying your claim. The carrier must reference the specific policy provision on which the denial is based; describe what additional material or information, if any, is necessary to further evaluate and support your claim; and explain what specific steps you must take to appeal.
Next, you should request your free copy of your claim file from the insurance company. Submit your request in writing immediately after the denial order to allow you sufficient time to review its contents before writing your appeal. This claim file should include a copy of your entire disability policy.
You must submit your appeal to the insurance company before the specified deadline. You should do so in writing, not by telephone, preferably by certified mail with delivery confirmation. It is critical that you do not miss your deadline. The time to appeal starts immediately after the insurance company denies your claim.
Your appeal letter should clearly state that you are appealing the denial of your disability claim. You should specifically state the basis for your appeal and list the additional evidence you are submitting in support of the claim.
If you received assistance in filing the appeal, be sure to mention this fact in your letter because insurance companies have been known to point to a well-written appeal letter by the claimant as support for upholding their previous denial. If preparing the appeal letter and putting together the enclosures took you a significant amount of time, be sure to mention that fact as well.
You Need Evidence to Support Your Claim
Finally, do not assume that the insurance company obtained all of the medical records and other evidence relevant to your case. Carefully review the list of evidence the insurance company considered in rendering its decision and submit (or resubmit) anything that will help prove your disability. “Packing the record” with such evidence is critical. Don’t forget – in most cases, you cannot submit any additional evidence during the lawsuit, no matter how relevant it is to your case. The only thing the court will review is the information that was in the claim file at the time the insurance company made its decision. The appeals process is the perfect opportunity to add as much information as possible to the claim file. Such evidence may be critical to a lawsuit later down the line. For such reasons, I generally recommend that you do not handle your own appeal on your own. Remember- ERISA laws are unfair and difficult for non-attorneys to comprehend. For assistance with your appeal, call (888) 321-8131 as soon as possible.
Oops. I Missed The 180-Day Appeal Deadline. What Do I Do Now?
You should not assume all is lost. You should immediately seek legal advice from an attorney like Mr. Ortiz who is experienced in handling ERISA disability cases to determine whether the typical 180-day deadlines apply to your claim. We can be reached at (888) 321-8131.
Should I File A Complaint with My State’s Department of Insurance?
If your claim is governed by federal ERISA regulations, then your state’s insurance laws are “pre-empted,” which means your state’s Department of Insurance has no jurisdiction. Many insurance companies do include stock language in their denial letters advising the denied claimant that he or she can file a complaint with his or her state’s Department of Insurance. This is in fact true. However, doing so is generally a waste of time. You will simply receive a response a few months later from the Department of Insurance saying that they lack jurisdiction in the matter. You will be no better off and your appeal deadline will be that much closer, if not already expired.
How Long Does the Insurance Company Have to Make A Decision on My Appeal?
The insurance company has 45 days from the date of your appeal to make its decision. This can be extended by an additional 45 days if the insurance company requests an extension in writing within the first 45 days.
Can I File A Lawsuit Against the Insurance Company Without First Filing an Appeal?
The answer to this question depends on the type of disability insurance contract you have.
Most employees have disability insurance coverage through a group plan with a private-sector employer. If your employer is large enough, or if you obtained your policy through an employee organization or union, then ERISA rules and regulations come into play. According to ERISA, you must “exhaust” your administrative remedies before you can file a lawsuit. This means you must follow the terms of the insurance policy and go through each step of the appeals process directly with the insurance company. If the insurance policy states that you must file one appeal, then you may only need to file one mandatory appeal. If the insurance policy requires you to file two appeals, then you must go through two appeals before filing a lawsuit. Other insurance policies have one mandatory appeal and one “optional” appeal.
When You May Not Have to File an Appeal
There may be other situations where you do not have to file an appeal at all before filing a lawsuit. Generally, you do not need to appeal if you have an individual policy purchased directly from an insurance agent or broker, or if your policy is sponsored by a government or church employer directly (in other words, if the policy is not through a union or employee organization). In such situations, you may be entitled to file a lawsuit after your first denial.
You may have questions as to whether you are required to file an appeal, or whether you should participate in the “optional” appeal process. If you have such questions, you should immediately seek legal advice from an attorney familiar with ERISA disability cases. Please call at (888) 321-8131.
How Long Do I Have to File A Lawsuit After the Insurance Company Has Advised Me That I Have “Exhausted” My Administrative Appeals?
If there is no mention of a specific time limit to file a legal action (lawsuit) in your LTD policy, then the time limit is the same as that for a breach of contract claim in your state. However, most LTD policies have a specific deadline to file a legal action. This specific language is usually towards the back of an LTD policy. Typical policy deadlines range from 1 to 3 years, but United Parcel Service’s LTD policy deadline is 6 months.
What Is the Arbitrary and Capricious Standard?
The “arbitrary and capricious” standard is a standard of review that applies to most ERISA long term disability claims. The court will review the disability plan or policy to determine whether the plan administrator has been given discretionary authority to administer the plan and make disability determinations under the plan. In other words, a plan is not required to use certain magic words to create discretionary authority for a plan administrator in administering the plan. What is required is a clear grant of discretion to the administrator. Where, for example, the insurance plan provides an insurance company with “full discretion to determine eligibility for benefits and to construe and interpret all terms and provisions of the Policy,” the arbitrary and capricious standard applies. This standard does not require the Court to merely rubber-stamp the administrator’s decision. Instead, according to the arbitrary and capricious standard, a plan administrator’s decision will not be deemed arbitrary and capricious so long as it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome. It is worth noting that the arbitrary and capricious standard is the least demanding form of judicial review. A court must, therefore, review the quantity and quality of the medical evidence and the opinions on both sides of the issues. Make no mistake. This does not bode well for the claimant. It is much more in favor of the plan administrator or insurance company. The Court will uphold a benefit denial determination the decision is rational in light of the plan’s provision.
Can an Insured Sue for Future Policy Benefits and Attorney’s Fees Insured When Suing an Insurer for Long Term Care Disability Benefits?
An insurance company cannot be mandated to pay all future benefits. Now, as for attorney’s fees, it really depends on the type of claim.