Overreach For Disability Retirement

Tuesday, October 30th, 2007

In order to obtain disability pension benefits under the New York State Retirement System, a claimant needs to show the inability to continuing working at his or her job. I have succeeded in securing benefits each time I submitted applications by providing evidence that the claimant is incapable of performing ANY work, let alone the claimant’s prior position.

A claim was approved yesterday that illustrates the above strategy. The starting point, which is frequently overlooked, is establishing the vocational demands of the claimant’s job. Obviously, the most physically and mentally strenuous, the easier it is to argue the job’s demands can no longer be met. The claimant worked in law enforcement, which clearly was not a sedentary position. The next step is showing how the medical evidence shows that claimant cannot perform the past work. However, rather than simply obtaining medical records and opinions demonstrating that the claimant could no longer perform her job in law enforcement, I showed how the medical evidence demonstrated the claimant could not perform the demands of any type of work on a full time basis, even sedentary desk work.

While many of my colleagues believe my tactics are excessive, I succeed at the initial application stage. Unlike some other sources of disability benefits, the chances of securing disability pension benefits do not increase at subsequent appeal stages. Additionally, from the client’s perspective, avoiding the time it takes to appeal an initial denial reduces attorney fees, which are typically at least partially contingent.
Posted by The Law Offices of Jeffrey Delott at 9:17 AM No comments:
Insurance Department Complaint

Insurance companies constantly deny and terminate Long Term Disability (“LTD”) claims without any legitimate basis because their decisions are usually subject to deferential review. Even if the basis for the denial or termination is wrong, a reviewing court will not overturn the decision unless it is patently arbitrary. Therefore, rather than paying disability benefits, insurance wrongfully deny and terminate claims because they hope a court will uphold the decision even if it is wrong.

One way to combat an insurer’s improper claims decision is by filing a complaint with the State insurance regulatory agency. Such a complaint must be filed prior to litigation, while the claim is still subject to administrative review by the insurer. I have a client from Ohio whose claim was approved by Aetna yesterday, not coincidentally after a complaint was filed with the Ohio Insurance Department.

The claimant filed her LTD application by providing all of the information required by Aetna’s application forms, including medical reports from her three treating doctors. Nonetheless, Aetna denied her application. I filed a complaint with the Insurance Department because, among other things, Aetna refused to provide a copy of the claimant’s file other than her medical records. Even though the claimant’s appeal relied on the same medical records from the same treating doctors, the application was approved after the Insurance Department complaint was filed.

If a case proceeds to federal court, in most cases the only risk for the insurer is the possibility of paying the claimant’s attorneys fees. Filing a complaint with the insurance department can result in other types of penalties and the filing itself is a blot on the insurer’s record. Furthermore, filing the insurance department complaint sends a signal to the insurer that the claimant is serious about obtaining disability benefits and most likely will litigate if necessary.

As noted above, insurers frequently risk going to court rather than paying disability benefits because they hope a court will uphold the decision even if it is wrong. Nonetheless, insurers often try to increase their chances succeeding in court by avoiding terminating or denying a claim with well developed evidentiary support. Claims that are prepared in anticipation of litigation, which includes filing insurance department complaints, vigorously rebutting all of the insurer’s arguments, and submitting both medical and vocational evidence in support of the claim, will increase the chances of securing benefits prior to having to proceed to court.

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