Appealing the denial of a long term disability claim for benefits under the Employee Retirement Income Security Act (ERISA) is both a right and an obligation. That means you have the right to appeal the insurance company’s denial of benefits. However, in addition to being a right, an appeal directly with the insurance company is an obligation under ERISA before you have the right to sue the insurance company in federal court for its failure to pay benefits.
The administrative appeal process with the insurance company prior to litigation is critical because every piece of evidence you intend to use in a lawsuit must have been part of the claim file during the appeal. Thus, your submission of evidence during the appeal process serves two important purposes. First, the insurance company may consider the new evidence and approve your claim without the need to sue the insurance company in court. Second, the evidence you provide during the appeal is often the only evidence you can use in federal court if your appeals are denied.
Please note that because every claim is unique, this list of “Do’s and Don’ts” is not an exhaustive list. It is merely to serve as a reminder of the most important things you should and should not do in an appeal. If you have any questions about how to file an appeal and what to include in your appeal, you should consult with an experienced long term disability attorney.
What You Should Do When Appealing A Disability Claim Denial:
- File Appeal Within the Time Limits. If your LTD claim has been denied or your benefits have been terminated, you must file an appeal within certain time limits. The time limit to file an appeal is specifically identified in your LTD policy. In most cases, you have 180 days to file the appeal.
- Obtain a Complete Copy of Your Entire LTD Claim File. Before you begin the appeal process you should request your entire claim file and policy from the insurance carrier. You will be surprised at all of the information you will receive. The claim file should include your medical records, the insurance company adjuster’s internal notes and memos, medical reviews by the doctor hired by the insurance company, surveillance video (if any) and all other information the insurance company considered in making a decision on your claim. You need to review all of this information so you know what to emphasize in your appeal.
- Supplement the Medical Records with Medical Source Statements From Your Treating Physicians. Medical records alone do not tell the story as to why you cannot work. It is very helpful to “bridge the gap” between your diagnoses and your resulting level of impairment. Your doctors should identify your level of impairment in a letter or by filling out a Residual Functional Capacity (RFC) form or Medical Source Statement.
- Obtain Written Support From Any and All Treating Physicians. You should not focus only on the doctor treating you for your most serious or “main” disability. The more physicians you have giving opinions, the more likely your claim will be approved. The doctors should identify your limitations and restrictions, and how your life has been negatively impacted by your illness/injury. You should get records and medical source statements from your family physician, specialists (such as neurologists, orthopedic surgeons, rheumatologists, cardiologists, psychologists, psychiatrists, etc.), chiropractors, physical therapists and any other health professional who can opine as to your ability to work.
- Get Written Support From Your Former Employer. If you had to stop work due to an injury or illness, then your medical condition may have impacted your work performance before you stopped altogether. Your employer should be able to give excellent insight into your ability to engage in work activity. Your personnel file should give a history of your performance reviews. Presumably, your only negatives reviews would appear right before the end of your employment.
- Use the Decisions of Other Agencies Approving You For Disability Benefits. If you’ve been approved for State Disability, Worker’s Compensation, Social Security Disability, a disability retirement plan, CalPERS or any other source of disability-related income, then an approval letter from these programs will be valuable evidence you can use to prove your inability to work to an insurance company.
- Obtain Written Statements From People in Your Personal Life. A spouse, other family members, close friend, neighbor, pastor or former co-worker can all provide excellent insight into the struggles you face on a daily basis. They should speak to what they witness with their own two eyes. These people from your personal life should tell stories about the difficulties they’ve witnessed you have.
What You Should NOT Do When Appealing A Disability Claim Denial:
- You should not submit your appeal to the insurance company before you have obtained and reviewed your entire claim file and policy unless you are on a deadline.
- You should not submit a simple letter as your entire appeal. The most important part of your appeal is the additional evidence you should be submitting with your appeal letter. Besides pointing out why you think the insurance company’s decision to terminate or deny benefits is wrong, you should submit updated medical records, opinion evidence (such as a letter or Attending Physician Statement) from your doctors identifying how your medical conditions impair your ability to perform work activity, and more. Your appeal letter should be more like a cover letter, identifying why you disagree with the insurance company’s decision, and enclosing the information that may change the insurance company’s decision. This is a critical stage of the claims process. In most cases involving an ERISA-governed long term disability policy, the claim is closed once a decision is made on your final appeal. This is why it is important to submit all records you think you may need in future litigation during the appeal. Any information you leave out may never be heard or considered by a federal court in litigation!
- Do not use the generic job description for your position that may be provided by your employer or by the insurance company. In most policies, the definition of disability for the first two years is being unable to perform the material and essential functions of your individual occupation. Thus, if the job description the insurance company uses in its evaluation does not include a full and complete list of your actual duties, then your chances of having your claim approved go down dramatically.
- Do not forget to ignore the negative side-effects of the treatment of your disabling medical conditions, and how those side-effects impact your ability to work. For example, the medications one takes for pain may make the claimant extremely fatigued. Another example is when an individual must undergo dialysis several times a week for several hours per session. Such treatments/side-effects of a medical condition can have just as much of an impact on one’s ability to perform a full eight-hour workday as the underlying disease/injury itself. Your medical records should identify your medications and side-effects, and you should make sure your doctors mention any medications or treatments and what side-effects they have to the insurance company.
- Do not submit your documents by “regular mail”. You should be using a trackable shipping method, such as Federal Express, Overnight Mail, or certified mail.
- You should not “appeal” your case on the phone and you should not answer many questions from the insurance company over the phone. You should request that all communications be in writing, in traceable forms such as certified mail, fax or e-mail.
- Do not go past the deadline to appeal. In most cases, you have 180 days from the date on your denial letter to file an appeal. If you fail to appeal before the deadline, then you may waive your right to pursue the claim any further in court.
- Do not appeal your claim on your own if you are not physically or mentally capable to do so. You can hire an experienced attorney, often on a contingency fee basis, which means you only pay the lawyer if and when the lawyer obtains a benefit for you.