Long Term Disability
Disability insurance is a benefit that your employer may provide, just like health, life, dental or vision insurance. Your employer may provide both short term disability (“STD”) as well as long term disability (“LTD”) benefits. Most employers’ LTD plans are funded through a third party administrator, which is usually the disability insurer, which creates a conflict of interest.
Insurers regularly deny LTD claims that follow a similar improper pattern and practice of arbitrary and unreasonable tactics. Under ERISA, the federal law that governs LTD claims, if the LTD plan provides discretionary authority to the insurance company, then the insurance conduct could be subject to an arbitrary and capricious standard of review. Insurance companies cavalierly deny LTD claims, especially when a claimant is not represented by legal counsel, because it knows that ERISA normally insulates it from jury trials, punitive damages and most state claims of bad faith. For example, see what ABC Good Morning America said about CIGNA. In the absence of those deterrents, insurance companies deny and terminate valid claims to improve profitability and market its claims management ability. Insurance companies anticipate that most claimants will give up pursuing their claim before cases go to litigation, and the insurance companies’ self-interest can be investigated. Insurers go to great lengths to cover up its bias, including purging evidence from the administrative record and obstructing discovery. Insurance companies reason that the worst that can happen as a result of their misconduct is that they will be ordered to pay what they were contractually obligated to pay under their disability policy.
According to Unum, a major provider of disability insurance, 3 out of every 10 workers between the ages of 25 and 65 will experience an accident or illness that keeps them out of work for 3 months or longer, with nearly 60% of these injuries occurring off the job. If an employee is hurt off the job, worker’s compensation will not cover them. When an employee cannot work for an extended period of time, LTD benefits may be available, which usually provide about 60% of your salary. Like CIGNA, Unum has a history of improperly denying and terminating valid LTD claims.
There is usually a waiting period before you can start receiving LTD benefits. A 180 day elimination period is typical. The maximum duration for paying LTD benefits is usually to age 65. To receive LTD benefits, you usually have to show that you lack the ability to perform the material duties of your regular occupation, and then after a two year period, from any occupation. Better LTD plans do not require having to prove inability to perform any occupation.
We can help you throughout the application process, which begins with completing application forms. Applications usually consist of three forms: a claimant statement, a physician statement, and an employer statement. Incorrect, ambiguous, or inadequate information on any of these forms can make it difficult, if not impossible, to receive LTD benefits, and will certainly delay an approval. If possible, you should ask your doctors and employer to let you review their forms before submitting them.
We will help you present the strongest application possible. Simply completing the insurance company’s application forms will not usually result in a decision. Even when completing every answer on their forms, the insurance company will normally say that the information submitted is insufficient, and they need more information and time to evaluate your application. Nonetheless, your application forms should provide as much information as possible, even including evidence that is not requested in the application forms. The stronger your application, the more likely it is that the insurance company will move on to another application to deny.
If your doctor is willing, we will discuss with them the type of medical information that should be included in their form. Most doctors are unaware of the type of medical information that is significant to insurance companies, and many doctors do not like completing forms. We will help your doctors present the necessary information in a way that cannot be misconstrued by the insurance company. We will also help you gather the treatment records, diagnostic tests, and functional assessments to submit with your application. We will also help ensure that the insurer does not harass you doctors.
Similarly, if your employer is willing, we will discuss with them the type of vocational information that should be included in their form. Employers do not know what vocational information is important to the insurance company, which is usually information derived from the US Department of Labor’s Dictionary of Occupational Titles. Your employer may improperly describe your duties, or neglect to mention some of them as well as the physical and mental demands of your occupation. We will help your employer provide the important vocational evidence.
Many if not most people stop working due to progressive disorders, as opposed to traumatic accidents. Your application needs to explain why you could work right up until you stopped working, and there is no box in the application for providing that information. We will help you present that explanation to your employer, if you have not yet stopped working, and to the insurance company, if you have.
Insurance Company Interaction
Many LTD plans allow insurers to interview you, which can be done over the telephone or in person. Do not be fooled by how supportive the claims representative appears to be because the purpose of the interview is to gather information to deny or terminate your claim. A “field visit”, is when they meet with you in person. A field visit is simply open surveillance, where the insurance representative looks for evidence to use against you.
If we represent you we will insist that the insurance company only contact you through us. If they want to speak with you or your doctors directly, we will insist that they do so only if we are present. If they want to meet with you, the filed visit can take place at our office. We will prepare you for these interviews, which usually follow the same script. In fact, you will frequently be asked the same questions that were in the application or requests for updated information, which shows that the field visit is simply open surveillance. We will also ensure that the insurance representatives do not misrepresent what was said during their conversations with your doctors.
Physical Examinations and FCEs
When the evidence all supports your claim, insurers will ask that you submit to an Independent Medical Examination (“IME”), Functional Capacity Evaluation (“FCE”), or both if your monthly benefit is high. An FCE is usually a 2-4 hour physical test conducted by a physical therapist. The therapist will then attempt to extrapolate from how you did to determine whether you have the physical capacity to do your job. The FCE uses expensive software to complete the report, which frequently is at odds with the FCE data in favor of finding you can work, which is not surprising since the FCE is almost always paid for by insurance companies. Similar, the IME doctors are anything but independent, since they realize they will not get work in the future if they find a claimant cannot work. In fact, insurance companies will ask for the number of times a doctor has found claimants able to work versus disabled. Some insurers even have contracts with IME companies, and obviously those IME companies want to maintain their business with the insurance companies, and know that they will lose their contract if they find too many claimants disabled.
We will research the backgrounds of the FCE or IME providers, and make sure all biased information makes its way into the record in the case the claim requires administrative or judicial review. We will insist that the insurer schedule an IME or FCE at a place and time that is reasonable and convenient to you. We will insist that you be allowed to bring a witness with you to record the exam.
In addition to IMEs and FCEs, surveillance is another tactic that insurers use when the evidence supports your LTD claim. It is important to review the video tape, the investigators notes and the invoices. What the investigator and insurer call being “active” is not really being active at all. The only activity that may be taped is your going to a doctor’s appointment, pharmacy, or fast food restaurant or dry cleaners because you cannot cook or clean. Every surveillance video I have seen is usually minutes out of a day. Even a couple of hours does not equate with an 8 hour work day. Attending a wedding or funeral does not show a person can work, especially if the following day the person’s symptoms worsen.
I have persuaded courts and even the insurance companies to disregard secret video surveillance.
Most LTD policies contain similar boilerplate provisions, including one that offsets other disability income from your LTD benefits. For example, if you receive SSD or Workers Compensation benefits, then the insurer will probably reduce your LTD benefit by the amount of your other disability benefits, which can reduce your LTD benefit to nothing. That is a reason why you may want to apply for an individual disability insurance policy before you become disabled. We can help you select an insurance company and the terms to include in your policy.
The insurance companies’ LTD policies will contain clauses that require you to apply for SSD benefits. If you don’t, then the insurance company will reduce your LTD benefit by the amount of your estimated SSD benefit. If a claimant receives LTD benefits, and subsequently is approved for retroactive SSD benefits, then it creates an overpayment. Insurers try to get claimants to use the insurance company lawyers to handle the SSD claim in order to facilitate the insurer’s overpayment collection business. Do not use their lawyers. They view the insurance company as their client, not you, and they can do things that help undermine your LTD claim.
You have 180 days to appeal a denial or termination of your LTD benefits under the Department of Labor ERISA regulations. You should immediately contact an attorney when you receive an adverse decision because it takes a long time to obtain the medical and vocational evidence to support your appeal. Our appeals are very similar to the legal briefs that would be submitted in federal court, which includes a thorough explanation of the medical and vocational evidence, errors the insurer made in reviewing your claim, and citations to case law that supports your entitlement to LTD benefits. This shows the insurance that you are serious and will sue them, which gives them greater incentive for targeting somebody else’s claim to deny or terminate. Also, you must file all of your evidence in your final appeal with the insurance company, or you risk being precluded from using it if you have to appeal in federal court.
The first step in any appeal is demanding a copy of your file, which you should do as soon as you receive the letter denying or terminating your LTD benefits. We insist that the insurance company send us a copy of all LTD Plan documents including the insurance policy funding the LTD Plan; the Summary Plan Description (“SPD”), which they usually will claim they do not have even though they created it for the employer; the claim file and all documents the insurer relied on to deny or terminate your claim; any internal guidelines the insurer used; the reports of all medical and vocational reviewers; invoices of any outside consultants; audio or videotapes of the claimant; and notes of any telephone conversations. The insurance company usually takes up to 30 days to provide the requested, which almost invariably fails to include all of the requested information. If the same insurer also handled your STD claim, we ask for that information too.
We write the insurer demanding that they provide us with a more specific description of the reasons for denial, which the ERISA regulations require. The denial letter may only state that there was insufficient “objective” evidence in support of your claim, and the insurance company interprets “objective” in an impermissibly narrow manner. We demand that the insurer specify why the objective information supplied was deemed inadequate, and what objective information is purportedly missing that they would find sufficient.
After reviewing the claim file, we will discuss with you what additional medical evidence we need from them, which could be narrative reports, treatment records, diagnostic test data, or functional assessments. We may also advise you on how to improve your claim by seeking second opinions and tests from your other treating doctors, or another doctor from a different specialty to see if they corroborate your treating doctors’ opinions. We might suggest your own FCE or IME or peer review, and will provide the insurance with medical literature that helps explain why your medical condition prevents you from being able to work. It is also may be just as necessary to secure additional vocational evidence, which can take the form of a comprehensive evaluation by a vocational expert.
Because of the insurance company’s conflict of interest, its default position is to deny or terminate your claim, which implies that you are not telling the truth or exaggerating your symptoms. That is why they conduct surveillance and field interviews to gather evidence to prove that you are being dishonest. We will help you prepare affidavit for you and your witnesses that describe how your physical or mental limitations render you disabled. This is important because ERISA does not allow you to have a trial, and you cannot present witness testimony if you have to appeal to federal court. Your family, friends, neighbors, co-workers, boss, religious leader, or anybody who observes you on a regular basis can be a credible witness to corroborate your subjective complaints.
Our appeals are thorough, take time, and there are out of pocket costs when we handle your appeal. While some say we “gild the lily,” we believe that our results speak for themselves. Prior to filing a lawsuit, you can file a complaint with the regional Employment Benefits Security Administration (“EBSA”). You will need to describe your issue specifically, and request assistance although the response from your insurer will likely be, “we didn’t do anything wrong.” While the EBSA may not be able to help, if the Department of Labor even investigates the insurer, your complaint will be used against them.
We are not afraid to litigate your LTD claim, and the insurance companies know it. When they don’t, they pay for their mistakes, 2009 WL 890626 (S.D.N.Y. April 2, 2009)
Many claimants want the insurance company to settle their claim because they are afraid that the constant barrage of information demands will make their doctors stop treating them, or they are tired of surveillance and filling out updated information requests, and the threat of future litigation. The insurance will not usually consider settlement until litigation has commenced, which entails some costs to file and serve legal papers.
If settlement is raised, the starting point is calculating the present value of your case. The insurance company’s present value is always too low. For example, the insurance company will use an inflated interest rate; that is, they use a rate that is higher than the rate at which you could safely invest the lump sum. We will explain to you in detail whether a settlement offer is reasonable, whether you should insist on reinstatement of your claim, and risks involved in accepting or rejecting any settlement offer.