If your disability claim has been wrongfully denied or terminated, you will need to file an administrative appeal. Often, your claim manager at the insurance company will advise you to just send a letter explaining why you disagree with the decision or send you an appeal form to complete. If you do this, you are making it very easy for the insurance company to uphold its denial on appeal. You should always consult an experienced long-term disability attorney prior to filing any appeal as this will give you the best chance of getting your benefits successfully reinstated. Every case presents its own unique challenges, but the following 6 steps are necessary in almost every case in order to successfully challenge the denial.
- Request the claim file and a copy of your disability policy. The first thing that needs to be done after any denial is to request the documents necessary to properly evaluate your claim and develop an appeal plan. You will have a denial letter from the insurance company. Using the information contained in this letter we will send a request to the insurance company and your employer for a copy of the insurance policy that governs your claim for benefits and a complete copy of your administrative claim file. The insurance company is required to provide a free copy of your entire claim file upon request. See 29 CFR 2560.503-1(g)(1)(v)(a).29 C.F.R. § 2560.503-1 (h)(2)(iii) describes what documents an administrator must provide. As outlined in paragraph (m)(8), the following documents are considered relevant to the claim, and must be produced under ERISA:
A document, record, or other information shall be considered “relevant” to a claimant’s claim if such document, record, or other information.
(i) Was relied upon in making the benefit determination;
(ii) Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination;
(iii) Demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5) of this section in making the benefit determination; or
(iv) In the case of a group health plan or a plan providing disability benefits, constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant’s diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination.
ERISA § 502(c)(1) imposes a penalty in the amount of up to $110 per day for “any administrator” who “fails or refuses to comply with a request for any information which such administrator is required to produce. . .” Of course, ERISA also notes imposition of this penalty “shall be, in the court’s discretion.”
- Carefully review the insurance policy and claim file. It is important to review and understand the terms and conditions of your disability insurance policy. The insurance company must decide your claim for benefits based upon the terms and conditions outlined in the policy. The terms and conditions of disability insurance policies vary significantly. The attorneys at Abell & Capitan have reviewed hundreds of these policies and can quickly and effectively help you understand your rights under the policy that governs your claim.Equally important is to have a complete picture of how the insurance company is administering your claim and how they are supporting their decision to deny your claim. The key to this information is typically contained within your claim file. These files can be anywhere from a few hundred to several thousand pages long and will contain copies of a variety of documents, including, but not limited to:
- Communications between the insurance company and yourself and/or outside sources. This should include phone notes, letters, e-mails or any other communication the insurance company has with you, your employer, or a third-party entity regarding your claim.
- Internal Claim Notes. These are internal administration notes from your claim manager and other internal resources at the insurance company. These can be helpful for understanding how the insurance company is approaching your claim and can often be extremely enlightening.
- Medical records. This one is self-explanatory. We will be able to see every medical record the insurance company has requested and received on your behalf.
- Functional Capacity Evaluations (FCE). These are typically performed by physical therapists. They consist of a battery of physical tests designed to measure your physical functional ability. The testing can take place in one day or be spread out over a few days.
- Vocational assessments: In-house vocational assessments are regularly performed by the insurance company. The purpose and complexity of the assessment can vary depending on how your policy defines disability. These are discussed in more detail below.
- Independent Medical Examinations (IME). These are in-person medical examinations by an “independent” physician. These examininers claim to provide medical assessments independently from outside influences. While this is sometimes true, sadly an inherent bias often infects this process. Many of these physicians make a significant amount of their income from performing IME’s for insurance companies. And some of these physicians carefully adhere to the old expression, “never bite the hand that feeds you.”
- Medical records reviews (sometimes called peer reviews): These are performed by a physician who is paid by the insurance company to review your medical records and issue an opinion regarding your functional ability.
- Develop an appeal plan. We know exactly what to look for in your claim file and can put the puzzle pieces together to understand how the insurance company went about denying your claim. After reviewing the file, we will develop a plan to appropriately respond to the insurance company’s denial, strengthen your claim for benefits, and hold the insurance company accountable for performing an unreasonable or biased review of your claim.This may include, but is not limited to:
- Treating Physicians: We will work with your treating physicians to clarify your functional ability and respond to any medical reviews performed by the insurance company. The insurance company is not bound by the opinions provided by your physicians; however, their support is often essential to this process.
- Medical Experts: The policy often permits the insurance company to send you for an examination with a provider of its choosing. Often, they do not exercise this option, but instead simply have your medical records reviewed by a physician that has never consulted with, much less examined you. At Abell & Capitan, we often respond by sending our clients for functional capacity evaluations or independent medical examinations to help provide an accurate assessment of their ability to function in the workplace. The decision to involve outside medical experts is made on a case by case basis.
- Vocational Experts: The insurance company regularly conducts in-house vocational evaluations. If your claim is at the any occupation stage, the focus of this evaluation is usually to focused on how your job is performed in the national or local economy. This is because most disability policies permit the insurance company to re-classify your occupation as it is generally performed, instead of how it is performed at your specific employer. Insurance companies regularly overstep here and improperly re-classify claimant’s occupations to make it easier to deny the claim. At the any occupation stage, the vocational review will be focused on locating transferable jobs a claimant can perform based upon on their knowledge, skill, experience, education, and wage requirements. Insurance companies regularly claim a person does not meet the any occupation definition of disability based on questionable vocational assessments that manipulate the numbers, assume non-existent skills, and identify unrealistic occupations or work modifications. At Abell & Capitan Law, we can quickly identify and combat these questionable vocational tactics. If necessary, we will retain a vocational expert to challenge these reports and provide an honest, detailed, and accurate vocational assessment of your claim.
- Witness Affidavits: It is often hard to obtain the complete picture of a person’s disability from the medical records alone. We often work with you to obtain sworn witness statements from people familiar with your condition and how it affects your ability to function. These statements can be especially helpful if your claim is governed by ERISA.
- Execute the plan. A plan is only as good as its execution. At Abell and Capitan Law, we believe in going into every situation with a solid plan, but we also pride ourselves on being flexible enough to quickly adapt when the road takes an unexpected turn. We will work closely with you, your treatment providers, and any retained experts to make sure we obtain all the evidence necessary to file a strong appeal on your behalf.
- File a timely appeal. Once all the appropriate information is gathered, it is time to submit an appeal. The denial letter will advise you of your appeal rights, including how long you have to file an appeal and where to send it. For ERISA governed disability claims, the deadline to appeal is typically 180 days from the date you received the denial letter. See 29 C.F.R. § 2560.503-1(h)(3). The appeal must be thoughtfully constructed and present a compelling argument for your entitlement to disability benefits. It needs to properly address any deficiency, impropriety, or questionable evidence present in the insurance company’s review of your disability claim. Above all, it must contain all important medical and vocational evidence in support of your claim for disability benefits.
- Mark your calendar. Once your appeal has been submitted, the insurance company has 45 days to make the decision. If necessary, ERISA permits the insurance company an additional 45 days if proper notice is given and “special circumstances” exist that require additional time to render a decision. See 29 C.F.R. § 2560.503-1 (i).
At Abell & Capitan Law, we focus on winning appeals and maximizing your claim value. Long Term Disability claims are what we do best. If your benefits have been terminated, give us a call. We can help! We offer free consultations and are always happy to discuss your disability claim with you.