In many cases, your chances of winning, depends greatly on which standard the court uses. For this reason, it is very important for disability claimants to have a basic understanding of this issue. Learning the basic legal concepts regarding this question will provide you with a better understanding of the strengths and weaknesses of your case.
In every ERISA long term disability case, the court must pick one of two standards to review the disability claim: 1) “the de novo” or, 2)“abuse of discretion”. The definitions of these two standards can be summarized as follows:
- When using the “de novo” review, the court decides the case without any deference to the prior denial by the insurance company or plan administrator.
- The “Abuse of discretion” standard of review is self explanatory. Under this criteria, the court will only reverse the prior denial by the insurance company if a clear error has been made or if the decision was arbitrary and capricious.
Obviously, the de novo standard of review is by far a much more favorable standard for disabled plaintiffs in ERISA LTD cases. However, it is not always possible for your long term disability lawyer to convince the court to apply this standard. The decision on how the court reviews a case is based in large part on the laws that apply to your particular case and the specific language contained in the long term disability policy.
Courts are required to review long term disability denials on a de novo basis, unless the disability plan documents contain a specific provision giving the plan administrator discretion to determine benefit eligibility or to interpret the plan (policy). If the plan or policy contains language giving discretion to the administrator, then the abuse of discretion standard applies. As a result of this situation, it has been common practice for insurance companies to insert “discretionary clauses” in most of their ERISA long term disability policies.
Fortunately, there is now a growing movement among some states to ban discretionary clauses from long term disability insurance policies. So far, approximately 24 states have moved to ban discretionary clauses. In many cases, appellate courts have found these discretionary bans to be legal. Therefore, a discretionary clause in your LTD policy might be illegal depending on which state it was issued. If the ban is applicable to your particular policy, the court will be required to review your case on a de novo basis.
Recently, a prospective client asked RamosLaw as to whether it was wise for LTD claimants to allow a disability insurance company to handle their Social Security Disability (SSD) case, too. Here are our firm’s views on the subject:
Most ERISA LTD plans include provisions which allow insurance companies to offset the money they pay a beneficiary by the amount he or she receives in SSD benefits.
Furthermore, most plans require beneficiaries to apply for SSD in order to receive LTD benefits. While these provisions are legal, LTD beneficiaries are entirely free to choose whoever they want to handle their SSD claims. Insurance companies do not have the right to either select or assign an attorney/representative to a claimant. Unfortunately, it has become clear that in numerous instances insurers simply don’t respect the claimant’s right to enlist his or her own SSD attorney.
Instead they attempt to steer, or even strong-arm, beneficiaries into hiring companies like Allsup, Advantage 2000, Ocudanta and Disability Services, Inc. to handle their SSD claims. Of course, these corporations are agents of the insurer; and ones whose loyalties are not with the claimants. Their objective isn’t to help you, it’s to help the insurance company.
For this reason, RamosLaw urges all LTD claimants who are also applying for SSDI to obtain their own attorneys. SSD lawyers work on a contingency basis, which means that they won’t charge you money unless they’re able to secure you your benefits. Moreover, the insurance company is required to credit you for the lawyer’s contingency fee. Consequently, you lose absolutely nothing by hiring your own Social Security Disability Lawyer.
There’s no question that it’s in your best interests to hire a law firm like ours; one with extensive experience in handling SSD, ERISA STD and LTD claims.
Once you retain such a law firm, it can begin the process of gathering the proper evidence and develop the arguments that will help you win both LTD and SSD benefits. A competent attorney who is experienced and skilled in disability law will also advise you on-and prepare you for-which strategies the insurance company will likely use against you.
All long term disability (LTD) claimants should have a thorough understanding of how their LTD plans operate. Most ERISA (Employment Retirement Income Security Act of 1974) group policies are composed of similar language that specifically outline how a claimant’s benefit eligibility is determined. However, while this language is mostly the same between these policies, significant variations can appear at times. For this reason, a claimant should make certain to carefully study his or her plan’s documents.
I will discuss in this article two terms that are almost always found in ERISA group policies: Own Occupation and Any Occupation. Most plans will provide benefits for the first two years if a claimant is unable to perform his or her “Own Occupation” due to injury or illness. At the expiration of this initial time period, the definition of disability changes. Subsequently, a claimant’s benefits will only continue if he or she can prove an inability to perform “Any Occupation”.
Coverage for 24 months under the Own Occupation definition is simply the general practice in the disability insurance industry. However, I have seen many ERISA plans with provisions that provide benefits under the Own Occupation Provision for as few as 12 months, and as many as 36 months. Please also note that it’s common for some plans to use the term Regular Occupation instead of Own Occupation. As I have discussed, these phrases, while usually similar, can still at times have different meanings. For this reason, I must reiterate the importance of carefully reading your plan’s documents.
Own Occupation or Regular Occupation:
Please be aware that insurers might attempt to misinterpret the meaning of Own Occupation to their financial benefit. Note that the manner in which your job is performed can be the subject of extensive debate. Therefore, it is vital for claimants to carefully define the nature of their occupations with specific descriptions of the physical and intellectual demands of their jobs. Do not allow an insurance company to determine how your own occupation is performed without your input. It is a good idea to provide the disability insurance company with a thorough account of your vocational responsibilities.
I have come across numerous instances in which the insurer tries to improperly classify the true nature of a claimant’s occupation. Unless you fully explain what the physical demands of your job consist of, the insurance company will often assume that your job is far less demanding than it actually is.
I see the problem that I have described above with claimants from numerous occupations. Very often, I encounter this problems with claimants with occupations in the medical field.
Here is one example that I have seen in several instances: a claimant informs the insurance company that he or she worked as a medical secretary. The insurance company then automatically takes the word “secretary” at face value, and determines that the job is sedentary in nature. However in reality, the claimant’s job required him or her to walk all over the hospital collecting laboratory samples, gathering medical records and escorting patients –some of whom are in wheelchairs. Based on the wrong assumption that the job was sedentary, the insurance company denies the claim. Clearly, if the claimant had forcefully explained the true nature of his or her duties, the insurance company would not have been able to deny the claim.
Any Other Occupation:
Insurance companies often fail to tell you that the term Any Occupation usually deals with occupations that you are “reasonably” suited to perform. Therefore, in many cases the insurance company cannot assume that you will be retrained or that you can accept jobs that are overly complex for you. Moreover, most plans will still consider you disabled if other jobs that you can perform provide an income which is below 60% of your pre-disability earnings. In these cases, insurance companies must perform comprehensive market research of the jobs available within a claimant’s local area. At that point, a vocational expert is required to determine whether jobs that the insurer believes you can perform also match a certain income level.
The elimination period serves two functions. First, it should come as no surprise to learn that the insurance industry initially created it as a cost-saving measure. Its secondary purpose though is to allow for a time period sufficient enough to determine the likelihood that a claimant’s medical condition will improve.
The Second Circuit Court of Appeals has revied the question of whether a claimant had satisfied the elimination period that would trigger his benefit eligibility. In Sobhani v. Reliance Std. Life Ins. Co., 2015 U.S. App. LEXIS 22041, the circuit court ruled that it was reasonable for Reliance Standard to require the plaintiff to show he had “completed the Elimination Period”. In fact, evidence within the administrative record revealed that for several weeks during that timeframe Sobhani had worked 30-35 hours per week.
Many LTD claimants are not fully aware of what an elimination period is. Unfortunately, due to this unawareness some claimants take actions that harm their claims, such as working part-time or doing some work-like activities on a contractual basis. Of course, it’s certainly understandable that some persons aren’t mentally or financially prepared to go without any salary over a considerable length of time. However, partaking in policy-excluded activities to offset lost wages can put a claimant’s entire disability benefits package at risk.
Legal issues associated with completion of the elimination period show why it is extremely important for claimants to carefully read their LTD policies and talk consult with a disability lawyer, prior to filing a benefit application. These steps can prevent a claimant from making costly mistakes during the initial application process.
Limitations on mental illness-related claims are generally held to be legal. However, the clauses that restrict payouts on these specific disability benefits are extremely unfair. They showcase a clear bias by insurance companies against those who suffer from mental disabilities; many of which can be just as disabling as those that are physical in nature.
Over the past few decades, science has learned a great deal about mental illness. Psychiatrists now believe that most mental health problems stem from physical issues located within the brain. Therefore, it is an outdated and flawed assumption to think that environmental or emotional factors are the primary sources of all mental illnesses.
One particular legal issue that comes up frequently in long term disability cases, is whether the cause of a person’s disability is a mental health condition, or a physical one. For example in the case of a stroke, the victim often suffers from physical as well as non-physical medical issues. Indeed, some stroke victims develop severe depression in addition to physical symptoms such as paralysis. The outcomes of such cases are usually decided on an individual basis. The court’s ruling will depend greatly on the exact policy language regarding the mental health exclusion as well as the unique facts associated with the claimant’s illness.
If you currently receive disability benefits and suffer from mental health limitations, it’s a good idea to carefully review your policy. In addition, an experienced attorney can determine whether any limitations in the payment of benefits apply to your case. A long term disability attorney can help you develop a claim strategy that makes it difficult for an insurance company to limit the duration your benefit payments.
The Exhaustion of Remedies doctrine is the legal principle behind the requirement that claimants must file administrative appeals before they are allowed to proceed on to court. Its purpose is to prohibit parties from disputing matters in court prior to presenting their arguments to lower administrative levels.
Recently, the 5th Circuit Court of Appeals ruled on an ERISA LTD case that dealt with this doctrine. In Moss v. Unum, the Court of Appeals considered the question of whether a phone call from a claimant’s lawyer to a disability insurance company (Unum) sufficiently constituted an exhaustion of administrative remedies. According to the court’s decision, the attorney called Unum and verbally informed them of his disagreement with their decision to deny LTD benefits to his client. At issue however was the fact that he failed to submit a formal written appeal. Instead of going the administrative appeal route, he quickly filed a lawsuit in court. Ultimately, the 5th Circuit ruled that the lawyer’s phone call to Unum did not constitute an administrative appeal. The court further explained that “[A]llowing informal attempts to substitute for the formal claims procedure would frustrate the primary purpose of the exhaustion requirement.”
Moss v. Unum highlights the damaging consequences that await those claimants who do not submit written, formal appeal letters in ERISA LTD cases. And while it is possible that other Circuit Courts may be more lenient toward claimants who fail to file administrative appeals, no one should ever take the risk of skipping the filing of an administrative appeal.
The Moss plaintiff also contended that the administrative appeal was not required because the denial letter in his case stated: “Unless there are special circumstances, the administrative appeal process must be completed before you begin legal action…” Moss made the argument that the bad faith demonstrated by Unum during the claim process constituted “special circumstances”. However the court rejected this argument, reasoning that Moss’s position would open the floodgates and allow countless claimants to sidestep the administrative appeal filing requirement simply by claiming “bad faith”.
Many of the LTD policies in the United States fall under a very complicated federal law known as the Employee Retirement Income Security Act of 1974. (ERISA) Under ERISA, courts are unable to entertain or allow any new evidence or documentation into a case; aside from what the claimant provided within the 180-day appeal period. Subsequently, once the allotted time has expired, many applicants are surprised to discover that their woefully insufficient appeal is all that they can present before the Court. By then of course, it is probably too late to correct any insufficiencies in the appeal. For this reason, cases with a poor administrative appeal have little chance of success.
It is paramount that an applicant be aware of the importance of the administrative appeal ahead of time. If an LTD claim is denied and subsequent appeals are exhausted, the claimant’s only remaining avenue is to commence a lawsuit in federal district court. For this reason, it is desirable to have the assistance of a long term disability lawyer during the preparation of the administrative appeal.
Ideally a person who has received a denial or termination letter from an insurance company should retain an accomplished, experienced LTD attorney to prepare him or her in the administrative appeal stage. If you have been denied LTD benefits, please contact RamosLaw to see if we can draw up that essential administrative appeal letter on your behalf.
It’s also important for you to know that RamosLaw does not charge at all until you have won your case and have received payment from the insurance company. If it’s ultimately determined that you are not eligible for benefits, we will not charge you for our legal fees.
As part of his services, he’ll draw up the vital appeal letter to the insurance company for you, and collect all of the required medical documentation. (Note: appealing entails much more than ‘just filing a letter’ stating you disagree with their decision. See: Preparing Your Appeal Letter.)
Once a claim has been denied, you (usually) have 180 days within which to submit an administrative appeal to the insurance company that issued the rejection. If you file your appeal after the pre-set deadline expires, you may lose completely your right to later contest their denial in court. Here is the aforementioned check list.
Regularly Check your Calendar Leading Up to your Appeal Deadline
As the old saying goes, timing is everything. And there are few instances where that axiom applies more than in getting your properly completed LTD appeal in on time. Set a reminder on your smartphone, place an X on your calendar, and enlist a close friend or relative to prompt you as the date on which your appeal must be filed draws near. Whatever you have to do to avoid forgetting, do it. It’s also important to remember not to wait until the last day to submit your appeal. In fact, it should be sent via overnight mail several weeks before it’s due.
Make an Appointment with your Doctor and Update your Medical Condition
It’s an absolute must that you visit the doctors who have treated you; especially those who are aware of your disability. It is paramount that your medical files contain the most recent status of your injury or illness. If your condition has worsened since the last time you saw your doctor, your medical files will not accurately reflect your updated status. Also, it is advisable to request that your doctor write a letter specifying your physical limitations.
Request a Full, Current Copy of your Disability Plan and Claim File
Federal law states that you have a right to a copy of your disability plan, along with any and all documentation your insurance company has accumulated in their file on you. You should certainly take advantage of your right to acquire them, as it will allow you to see the reasons why your insurer decided to deny your benefits. These documents will give you-and your attorney-an excellent insight into the strategy that your insurance company plans to follow. Of course, it goes without saying how invaluable that data would be. Also, it’s key to note whether their file on you contains the required medical records.
Request Medical Records
As you might expect, medical records are indispensable in all LTD Appeals. You will be required to provide a comprehensive medical status as part of your appeal. And it’s infinitely better to produce as much relevant information and favorable evidence as possible at the outset. To reiterate what was stated earlier, nothing new whatsoever is allowed to be introduced once your initial administrative appeal is filed. It’s also advisable to double-check with your doctor to ensure that everything in your medical records is correct. If not, request that the appropriate adjustments be made.
Keep Copies of all Correspondence
It’s important to keep every piece of mail sent to you by your insurer, and take comprehensive notes on any telephone conversations you may have with them as well. You never know what might end up being helpful to your case, and at the very least these records will grant you and your attorney an even greater insight into your insurance company’s motivations and strategies.
Sensor your Postings to Social Media Insurance companies typically leave no stone unturned in their efforts to avoid paying benefits. As such, they’ll certainly review your Facebook, LinkedIn, Twitter and other social media accounts to uncover information that will help to strengthen their case against you. That’s why it’s wise to go through your accounts and delete anything, no matter how trivial, you believe that might weaken your position. Otherwise whatever your insurer can find that they then can use against you, will indeed be used against you. Regardless, it’s always a good policy to think twice before posting anything on the internet.
Read your Insurance Policy
While having an experienced attorney on your side is always an excellent idea, it’s also wise to spend time carefully studying your LTD policy. The better you yourself understand the process, the better off you will be.
Be Careful when Signing Authorizations
Insurance companies are authorized to request your medical records. Although at times, they go beyond that and ask claimants to sign consent forms that allow them to access non-medical information. You’re under no obligation to grant insurers permission to converse with previous employers, or to acquire all of your financial documents. Review all medical authorization forms carefully, and eliminate language that calls for providing any documentation that is not relevant to your claim.
Understand Your Denial Letter
It is advisable to read and understand your denial letter to fully absorb the reasons why your benefit claim was rejected. It’s always wise to comprehend your opponents’ strategy prior to composing your own. If you find the denial letter to be unclear, you can request of your insurer to write another letter to clarify their position.
Be Sure to Thoroughly Explain the Nature of Your Work
Make sure to amass documentation that sufficiently defines your job duties. This might come in handy because sometimes a job title doesn’t reflect the work an employee actually does.
Request Your File From The Social Security Administration
Are you receiving Social Security disability benefits? If so, request a copy of your file from the Social Security Administration. (SSA) While the definition of “disability” used for awarding SSDI benefits is frequently not the same as that used by your insurer, the information within your SSA file is still highly influential evidence that your condition prevents you from working.
Ask a Friend or Relative to Help You with the Process
It can be a Herculean task to accomplish all of this on your own. That is why we recommend asking a close friend or relative to assist you during this challenging time. It would be very advantageous to recruit someone to help you gather the information you need to file your appeal, and to assist you with keeping track of your medical appointments and deadlines.
At RamosLaw, we are very well aware that disability claim examiners repeatedly use the same unjustified reasons to deny claims. If this has happened to you, please contact us for a free consultation. We will be happy to evaluate your case at no cost, and then determine whether we can help get your LTD benefits approved or restored.
To better illustrate what we mean, we’ve provided five of the most common excuses used by LTD insurers to deny claims- along with some explanations as to why their arguments may not hold up:
1. Lack of Objective Evidence.
Numerous denial letters state that an LTD claim was rejected due to a lack of objective evidence. However, it’s well-established that objective evidence isn’t always able to be provided. Sensibly, courts have long-recognized that it’s an unreasonable stance to require a claimant to provide objective evidence for ailments like fatigue, pain or mental illness. Indeed, there are many genuine ailments that aren’t outwardly visible but are recognized as disabling conditions by the medical community.
2. Change in you plan’s definition of disability.
Most LTD insurance policies state that benefits are to be paid for a finite period of time, (typically two years) if a claimant can no longer perform the tasks associated with his or her regular employment. Once the predetermined time period is complete, insurers continue to provide coverage only if the claimant cannot work in any occupation. In many instances, this change in the definition of disability is used by insurers to give themselves an easy way out and discontinue benefit payments. In many cases, the insurance company simply doesn’t want to acknowledge that a claimant remains fully disabled.
Surveillance videos are a particularly favorite tactic of insurance companies. We have seen this tactic countless times. Most of the time, the activity shown in the video footage can explained. Moreover, these videos only spotlight a very brief time in a person’s life, and are not demonstrative of whether he or she is capable of working.
4.One of Their Doctors has Decided that You are Not Disabled.
This is a good one. We’ve all seen TV shows or movies in which a corporation brings in a “medical mercenary” to offer his opinion, before riding off into the sunset with a large check in his pocket for services well-rendered. Well, sometimes life does imitate art. The reality is simple. No doctor is better suited to issuing a detailed medical opinion on a patient’s condition than the doctor of that patient him or herself. And certainly not a physician who’s flipped through a file, has given a brief examination, and has a significant financial interest in siding with the insurance company. Through diligent research, sometimes we can show the insurer’s doctor’s bias due to the compensation received in exchange for a beneficial report. We work with your personal physician to build your case, and also uncover inconsistencies or omissions in the report presented by the insurer’s doctor.
5. The Social Security Administration’s disability decision does not apply to your case.
Insurers continually ignore the Social Security Administration’s (SSA) determination when sending out claim rejection letters, even though some courts and insurance regulators have found that this practice is problematic. Insurance companies should be required to consider the findings of the SSA, as the standards that it uses to determine disability are usually much stricter than those required under LTD policies. The consistent failure of insurance carriers to give at least some weight to the SSA’s determinations has allowed us to reverse numerous LTD denials or obtain favorable settlements.
Assistance You Can Rely On We’re here to b provide you with vital information regarding your LTD benefits. At RamosLaw, we handle inquiries from countless people just like you, who may not be fully aware of their rights with regard to appealing a denial of benefits. There is no cost associated with your initial consultation. We also assure you of an impartial assessment on the strength of your claim, and whether you should retain us as your attorneys.