What is ERISA?
ERISA is an acronym for Employee Retirement Income Security Act. ERISA is a Federal law that was signed into law Labor Day, 1974. The original purpose of the Act was to protect workers from the possibility of bankrupt pension plans. As almost an afterthought, ERISA was broadened to also apply to employer-provided long term disability plans. As a result, deciphering ERISA’s disability provisions within ERISA’s sea of other employee benefit provisions can be very challenging.
What if I purchased long term disability insurance?
If you purchased long term disability insurance directly from an insurer (rather than received long term disability insurance as an employee benefit) then ERISA probably does not apply. Instead, state law applies.
Why do I care whether State law or ERISA applies?
ERISA, while enacted to protect workers, is widely known as an extremely pro-insurance law. For example, overturning a denial governed by ERISA may require proving that the insurer “abused discretion,” a very high standard of proof. Also, while ERISA cases are heard by federal judges, appointed for life by the President. By contrast, cases litigated in state courts are often heard by jurors who may be more sympathetic to the disabled and less accommodating to insurance companies. Richard Rizk represents persons with federal ERISA disability claims as well as those with disability disputes concerning disablity policies issued in Oregon. If you live anywhere in the United States, your employer provided you with a Long Term Disabilty policy and your claim is now denied, contact Richard Rizk to see how he may be able to favorably resolve your claim.
What is long term disability insurance (LTD)?
Disability insurance protects workers who become disabled for an extended period due to injury, sickness or mental illness. (See your policy for a specific definition.) Disability insurance’s aim is to help replace lost wages in that situation—but not completely. Disability insurance typically pays 60 to 80 percent of pre-disability earnings. Long term disability insurance often begins after six months of inability to work up to a certain age, usually 65. Again, policy terms differ.
What is NOT “long term disability insurance”?
Neither Social Security Disability (SSD) nor Workman’s Compensation insurance are what we refer to as long term disability insurance. While long term disability insurance is provided by private insurers such as The Standard, Hartford, Met Life or Aetna, Social Security is government funded. Many long term disability policies contain a clause allowing the long term disability carrier to reduce long term disability benefits by amounts received from social security, workman’s compensation, or no-fault auto insurance (PIP). Understanding the interplay among these benefits is crucial to resolving a long term disability claim.
What is an ERISA disability “PLAN”?
Most large to medium sized employers offer employees an ERISA disability plan. ERISA requires plan administrators to provide participants with key information regarding plan benefits, funding, fiduciary responsibilities, management, grievance and appeals. As unfair as it may seem, ERISA allows insurance companies to interpret plan terms.
When you were hired, you probably received a large packet from human resources outlining your disability plan. This plan is a different document than your policy. If you have an LTD claim or think you might have one, secure your PLAN and POLICY as soon as possible. Plans differ. For example, “disability” is defined differently from plan to plan. To complicate matters, plans often differ in how disability is defined after a certain amount of time, often two years.
I have been denied an insurance disability claim. Now what?
First, fax the claims to request a “complete copy of the claims file.” ERISA requires the insurer to provide it without cost to you. Under ERISA, you must first file one or more “administrative appeals” (see your letter of denial for deadline). This appeal is considered by a separate claim unit.
You need to stack the claims file with evidence helpful to your case. Why? Your disability appeal will be based on the evidence in the claim file. The key here is to ask the right questions. Asking the wrong questions or simply asking your doctor to support your disability may not be effective enough. Remember, your doctor probably has already answered many questions posed by your insurer to track the policy’s specific requirements. Consider opinions of other physicians and statements of the responding doctor. Remember that while denial appeals are usually required within 180 days, many physicians delay responding to requests for opinion letters. If you think you might need legal assistance, complete the FREE online evaluation form at the top of this page, as soon as possible, so Disability Attorney Richard Rizk can start working up your file for suit or settlement.
What evidence can help in my long term disability appeal?
Evidence from treating physicians and medical specialists in the area of disability at issue can be helpful. Sometimes your own sworn statement or videotape specifically describing your functional limitation helps overturn a denial. Additionally, an IME (independent medical evaluation) or FCE (functionally capacity evaluation) or MRI or CT testing may help substantiate your disability and satisfy any policy requirement for “objective findings.” In one case, Richard Rizk was able to successfully resolve a previously denied claim with the use of a digital motion picture of the claimant.
Why then do I need a disability attorney?
The standard of proof to overcome an ERISA long term disability denial may be “abuse of discretion,” a very tough standard. To sustain a denial, insurers usually only need some evidence to support its position. Sometimes insurers deny for the wrong reasons or apply the wrong legal standard. Richard Rizk has successfully overturned denials where denial language does not track policy or plan requirements. Richard Rizk also knows what questions to ask of whom and at what time in order to maximize the chance of a settlement or win an appeal. Also, insurance companies know ERISA is a sweet deal for them and that a represented client is more likely to go the distance or present a story to the press that may result in changes to ERISA that benefit disabled persons at the expense of insurers.
How much time do I have to initially appeal a denied claim?
There are appeal deadlines, and time is not on your side. Under ERISA you generally have between 90 and 180 days to appeal and submit evidence in support of a disability appeal. Then the insurance administrator has 45 days to respond, with a one time extension of another 45 days.
I was paid long term disability for 2 years. Now my long term disability carrier claims I am no longer disabled even though my condition has worsened. Why have they changed their position?
After two years, most long term disability policies switch from an easier “own occupation” disability threshold to a more stringent “any occupation” standard. That is why LTD denials are very common at the 2 year mark.
My long term disability carrier relies on the opinion of a vocational consultant in denying my claim, isn’t whether I am disabled a medical issue?
Whether you are “disabled” under the terms of your long term disability policy involves medical issues legal issues, and vocational issues. Whether your disability is medically substantiated is the classic medical issue presented in a long term disability appeals. Some policies may also require that your disability be verified by “objective findings” such as an MRI, X-ray or medically accepted diagnostic testing. Whether policy requirements have been satisfied so that disability benefits are due is usually the central legal issue in LTD appeals. What a particular jobs requires and whether a particular job exists in a particular region are common vocational issues in LTD appeals. If an insurer relies on a vocational consultants, you may also need one to refute the insurer’s vocational expert. Generally speaking, vocational consultants are most important when the “any occupation” disability standard applies.
On your other website, rizklaw.com, you suggest creation of an “organic” short video. Why?
Two reasons: 1. ERISA generally does not allow for live testimony. A video of you telling your disability story is a great way to humanize what might otherwise be a sterile claim file. Decision makers need to know who you are and how you will be affected by their decision; and, 2. Videos can be a great negotiation tool. Be careful though the wrong video may undermine a claim. Be certain of policy terms before sharing a video with a long term disability insurer.
I suspect my insurer may be conducting video surveillance. Do they really do that?
Yes. Insurers use video surveillance as a tool of fear to dissuade long term disability appeals. As a former defense disability attorney, I know that video surveillance is expensive and rarely reveals anything significant. If you suspect video surveillance contact a long term disability lawyer as soon as possible. Sometimes surveillance films actually support disability.
Social Security accepted my disability claim, but my long term disability Carrier did not. Why the difference?
Social security rules for establishing disability differ from long term disability rules. Typically, it is easier to establish a Social Security claim than a long term disability claim. On the one hand, if social security is dis-approved long term disability insures argue “You want long term disability? Even social security believes you are not disabled.” Conversely, should you be granted Social Security disability benefits, the long term disability carrier will probably seek a reduction in long term disability benefits for the money you receive in social security benefits. Your policy probably contains a term requiring you to at least apply for social security benefits.
My LTD insurer has offered to hire a social security law firm to handle my social security claim. Should I accept their offer?
No. As alluded to in the prior answer, your LTD insurance carrier has a financial incentive for you to get social security because if you get social security, the LTD carrier will usually owe you less. File for Social Security yourself or ask Richard Rizk for a referral to a reputable social security attorney.
My LTD insurer letters don’t match what they say to me on the phone. What is the best way for me to communicate with my LTD insurer?
I suggest you only communicate with an LTD insurer in writing by fax. Do not communicate in a manner inconsistent with your disability. For example, if you have carpel tunnel don’t write a long letters in your own hand. Consider using a surrogate to type or handwrite letters for you indicating who typed and that you approved or authored, for example.
I suspect my doctors may be communicating with my long term disability carrier without my knowledge. Am I just paranoid?
No. LTD insurers routinely write treating doctors in hopes of generating evidence to deny your claim. Treat with medical providers who support your disability and are willing to write letters on your behalf.
I don’t understand all this and I am very afraid now I have been denied long term disability benefits. What can I do?
Don’t sit on a denial! You have limited time to appeal and the attorney you hire will need that time to analyze your policy / medical file, generate favorable medical / vocational evidence and prepare the best appeal possible.
I have read about ERISA and am convinced it unfairly favors LTD insurers. What can I do?
Tell me your story in writing and video. I am looking for persons who have been unfairly treated by LTD insurers so I can present the most egregious examples to lawmakers in Washington and national news outlets. Together we can change ERISA! I can be reached at email@example.com or though this website. Richard Rizk (503) 245-5677.