Your chances of acquiring a disability within your lifetime are quite significant and in many cases, the need for LTD insurance is a worthwhile investment. However, Long Term Disability claims can be a very complex issue – almost certainly involving much more than just simply filing paperwork. Dealing with an LTD claim can quickly become overwhelming. But it doesn’t have to. On this page you will find important information regarding steps to prepare for an LTD appeal, the rights you have as an LTD policyholder, as well as, a list of some potentially disabling medical conditions.
On May 10, 2017, Jerome Larkin of Rizk Law will appear before the 9th Circuit U.S. Court of Appeals on behalf of appellant Tricia Cooper. The Court will decide whether Intel / Reed Group/ CAFS abused discretion in declining Ms. Cooper’s long term disability claim based on outmoded science (concerning fibromyalgia). See, Tricia Cooper v. Intel Corp. LTD Plan [3:13-cv-01852-HZ]. Oral Argument is slated for 10am at THE PIONEER COURTHOUSE 700 SW 6TH AVE, 2nd floor, Portland, OR
Steps to Take to Prepare for an LTD Appeal
Preparation is the key to success and your time to appeal an LTD denial is limited. Whether or not you hire an attorney, take these steps so you can hit the ground running in appealing a long term disability denial.
#1: Request the Claim File, Policy and Plan
If your long term disability policy was provided by your employer, then a federal law known as ERISA applies to your case. Although ERISA is generally known as pro insurer law, ERISA contains at least one pro-claimant provision: ERISA requires long term disability insurers to provide you with a complete copy of its entire claim file FOR FREE.
So, before you request an appeal, fax and email your insurer requesting a complete copy of your long term disability claim file. Appeals are based on the claim file record. Thus it is crucial to get positive medical evidence in the claim file before perfecting an appeal. In order to know what should be added to the claim file, you need to know what is already there.
A request for your long term disability claim file might read: “Please now send a complete copy of your claims file, the policy and plan. I will later notify when I intend to appeal.” I reserve all rights under any potentially applicable coverage under the long term and short term disability policies issued.” Send directly to the long term disability insurer listing the claim number and assigned claims examiner.
#2: Request your Entire Personnel File
If your claim is in the “own occupation” period you will need to prove you cannot perform the material duties of your own occupation. Your personnel file may contain detailed information concerning what your job involves. The file may also provide hints to your employers’ true motivations. It sometimes takes employers some time to comply with your request, so do not delay. Make sure the request is in writing.
#3: The Initial Appeal
Thus, a good appeal will cite medical evidence tracking the policy and plan’s appeal standard of disability. Under ERISA you will have 180 days send your written appeal and supporting medical evidence. (READ DENIAL AND POLICY). Since you probably won’t be able to testify, consider submitting a video explanation filmed by a significant other with the appeal. The disability plan administrator has 45 days to respond, with a one-time extension of another 45 days. First extensions are typically allowed.
What Are Your Rights Concerning LTD Insurance Benefits?
1. You have a right to buy a long term disability (LTD) policy directly from a private disability. Why would you want to buy an LTD policy when your employer provides LTD insurance at no or little cost? Because, with few exceptions, when you receive LTD insurance through your employer, an unfavorable law called ERISA applies. If ERISA applies, you will probably have no right to present new evidence at trial, testify at trial or have your case heard by a jury of your peers. Also, winning ERISA cases often require a higher standard of proof than disputes involving a LTD policy you bought directly from a private LTD insurer.
2. You have a right to access your medical information. Before you file a LTD claim request your medical files from all medical treatment providers. If ERISA applies, any appeal will be based on what is in the claim file. Since acceptance or denial will often depend on whether doctors support your claim, see what is in your medical file before filing a claim. If possible, ask your doctor to correct statements in your file which do not support disability.
3. You have a right to seek treatment from a doctor you like. If medical records from a certain doctor do not support your claim or you get bad vibe from your doctor, change doctors. The LTD insurance company will be writing your doctor with a list of questions, it is virtually impossible to win a LTD dispute if ones own doctor does not support disability.
4. You have a right to your LTD policy and plan. You wouldn’t play high stakes poker without a firm grasp of the rules of the game. If your employer provided your LTD policy and you suspect you might need to file a claim, fax and email your HR representative AND your LTD insurer early on to request a copy of your policy and plan. (the “policy” is the document setting out specific disability coverages; the “plan” is the agreement between you and your employer regarding the coverages to be provided.)
5. You have a right to the insurance company’s complete claim file. If your claim has been denied, immediately fax and email your H.R. representative as well as your insurer to request for “my complete claim file including, but not limited to, claims examiner notes, medical chart notes and all other medical information and investigative information.”
6. You have a right to appeal your LTD denial. However, before you initiate your appeal, an attorney well versed in LTD claims should study the claim file in light of the policy language presented. The trick here is to appeal in time to avoid appeal deadlines but not appeal before evidence you need to win your case is submitted to the claims file.
7. You have a right to the attorney you choose. Remember, LTD insurance companies have a financial motivation to see that as little as possible is paid on your LTD claim. And, your human resources contact, while well-meaning, may not have the specialized expertise to advise you competently. Sometimes, LTD insurers offer to hire, for “free”, attorneys to pursue Social Security benefits for you. But keep in mind, the LTD insurer offer is self-motivated since most LTD policies allow LTD insurers to reduce LTD benefits by the amount you receive in social security benefits. Richard Rizk is an experienced disability attorney who is passionate, dedicated to the rights of those who have been wrongfully denied LTD benefits. To see if you qualify for a no upfront cost contingency fee arrangement, complete the evaluation form on this website today. Most inquiries are responded to within an hour of submission.
Your Chance of Disability is Significant
Did you know that about one-quarter of all American adults will become disabled before they retire? Did you also know that the average length of a disability is about 2.5 years? Ask yourself, what you would do if you couldn’t pull in your usual paycheck for 2.5 years or more?
Even more troubling…most Americans do not have disability insurance or enough savings to pay the costs they would incur if they were suddenly disabled. Plus, few of those who do have disability insurance appreciate the limits of that insurance and the tactics insurers use to elude claim payment.
Factors most likely to contribute toward disability include:
- Illness such as cancer, heart attack, stroke and diabetes;
- Motor vehicle accidents; and
- Lifestyle choices such as smoking, drinking and overeating.
The good news may be that we can reduce our chances of becoming disabled by improving life choices. For example, a typical non-smoking, non-obese female has about a 24% chance of becoming disabled for three months. Similarly, a 35-year-old man who is 5’10” and 170 pounds – and who leads a healthy lifestyle – has about a 21% chance of a three-month-long disability during his life. If the same woman smokes, her chance of becoming disabled for three months increases to 41%. Add 30 pounds and a smoking habit to that same man and his risk of becoming disabled for three months or longer skyrockets to 45%.
After years of recession, few people can now absorb the emotional and financial costs associated with disability. Take matters into your own hands: lead a healthy lifestyle and purchase a disability policy directly from a reputable insurer after calculating your fixed overhead costs. Because your risk of disability is significant, don’t rely on your employer to assess and mitigate your disability risk.
Some Potentially Disabling Medical Conditions
AIDS – a serious (often fatal) disease of the immune system transmitted through blood products, especially by sexual contact or contaminated needles.
Cancer – broadly defines uncontrolled and dangerous cell growth. Cancer can affect nearly every organ and body part.
Chronic Fatigue Syndrome – a disorder marked by persistent fatigue, which interferes with ability to work and perform normal life activities. CFS does not subside with rest and lasts a minimum of six months.
Chronic heart failure – a disorder in which the heart loses its ability to pump blood efficiently throughout the body. The oxygen and nutrients in the blood provide the body with the energy it needs to operate efficiently.
Congestive heart failure – lung congestion produced by heart attack, hypertension or heart disease.
Crohn’s disease – a gastrointestinal inflammatory disease generally associated with diarrhea and irritable bowel.
Degenerative Disc Disease – degenerative disc disease is a spinal condition marked by shrinking and breakdown of intervertebral discs. These age or injury related changes may lead to arthritis, disc herniation, or spinal narrowing and pain.
Hepatitis C – an infection which may occur after direct contact with the infected blood. Hepatitis C affects the liver and can cause liver damage.
HIV – Human Immunodeficiency Virus, the virus causing AIDS. The HIV virus is known to attack the immune system.
Lupus – a chronic inflammatory and autoimmune disease marked by inflammation, pain, and global tissue damage. In serious cases kidney, heart or lung problems also develop.
Multiple Sclerosis (M.S.) – a chronic neurological disease which can result in muscle control deficits and diminished vision, balance, sensation, strength and cognition.
Osteoarthritis – arthritis involving breakdown and eventual loss of the joint cartilage.
Reflex sympathetic dystrophy (RSDS, causalgia) – a chronic progressive neurological condition affecting muscles, joints, skin and bones. RSDS usually develops in a broken arm or leg.
Rheumatoid arthritis – arthritis caused when the immune system attacks joints.