An FMS Communities Disability Help Page
Navigating the Disability Insurance
By Mark D. DeBofsky
As many people with
In addition to Social Security disability, there are two types of disability insurance: long term disability (LTD), which is offered as a group plan through an employer or association; and disability income, which is purchased individually and provides a fixed monthly payment in the event of sickness or accident causing an inability to work. The type of insurance you have affects the steps you must follow after a claim has been denied.
If you have individual disability insurance and your claim is denied, your case can be decided in a trial by jury. In some states, such claims may also include the possibility of an award of damages for bad faith.
Group disability, or LTD insurance, on the other hand, is usually governed by the ERISA law (Employee Retirement Income Security Act). Unless such insurance coverage is provided by a government or religious employer, the likelihood is that the ERISA law will apply. Under ERISA, there is no right to a jury trial and no claim for any damages whatsoever.
However, the ERISA law does offer an advantage if a claim is denied in whole or in part, the statute entitles the claimant to a full and fair review. That review process is the key to victory.
Whichever course you must follow, the following information will help you navigate through the disability claim process and will enhance the chances of success if litigation becomes necessary.
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Collect your evidence
Most disability benefits cases, such as those involving cardiac conditions, spinal impairments or neurological disorders, are diagnosed or rated based on positive laboratory tests or radiologic evidence.
Many people with
Recognizing there is as yet no clear cut objective proof of
Be sure to document the times youve had to miss significant family or social events such as weddings, funerals or reunions. Nothing precludes you from submitting such evidence or other documentation such as photographs and videotapes that depict disability and personalize your claim to the insurance company claim analyst.
The most important proof in any claim, though, is a well-supported opinion from the treating doctor. A growing trend in the case law is to give deference to the treating doctors opinion so long as the doctor has expertise and the medical opinions are not inconsistent with the other evidence.
In Regula v. Delta Family-Care Disability Survivorship Plan, 266
F.3d 1130 (9th Cir. 2001), the court ruled that the treating doctors opinions should
have dictated the outcome of a disability benefits claim. Further, so long as the treating
doctor has a well-established treatment relationship, and has experience in treating
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Several cases have challenged insurance company decisions rendered
by non-expert non-examining physicians. The courts were critical of the insurance
companies for failing to apply reasonable expertise in evaluating the claims either by
having the claimant examined or by having a doctor versed with
Know the traps
Insurers may try to deny
Lack of objective evidence. Some disability insurers have
denied claims due to a lack of objective evidence such as medical tests. But the majority
of courts have disagreed with that conclusion. For example, the case of Mitchell v.
Eastman Kodak Company, 113 F.3d 433 (3d Cir. 1997) ruled that a disability insurer could
not deny a
Even where an objective proof requirement was contained in a self-insured plan, though, Intel Corporation was required to pay benefits on a
CFIDSclaim when the claimant provided objective evidence such as a positive Epstein-Barr virus test. The court ruled in Friedrich v. Intel Corp., 181 F.3d 1105 (9th Cir. 1999) that Intel improperly acted as the claimants adversary and wrongfully denied Friedrich the opportunity to prove disability based on CFIDS.
Self-reported illnesses. Some disability insurance policies
try to limit the duration of disability payments in cases involving self-reported
illnesses such as
Mental illness. Insurers may attempt to characterize
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Even after youve won your case, you must remain on your toes. Here are two tactics insurers may try to prove that you dont deserve continued benefits:
Surveillance. Insurers frequently use surveillance to see if the insured is engaging in activities inconsistent with claimed restrictions; however, rarely does surveillance justify the denial of benefits. So long as the medical evidence is consistent and the treating physicians opinion unequivocal, the claimant should not have an excessive fear of losing benefits due to surreptitious surveillance.
An excellent example is Clausen v. Standard Insurance Company, 961 F.Supp. 1446 (D.Colo.1997) where the court properly noted that a couple hours of surveillance showing the claimant walking her dog and driving may only be indicative of the claimant having a good day and are not proof of ability to work over the course of an eight-hour day or 40-hour work week.
Continuing disability reviews. Another point to keep in mind
is that once benefits are secured, absent significant medical improvement, the insurer
will likely be required to maintain payments. The Regula case cited above, while not a
Find an attorney
The comments above are by no means exhaustive, and the law varies from state to state. It is therefore important to secure experienced, competent counsel to assist in these cases. Finding such an attorney is often no easy feat because very few attorneys have specific experience in handling disability benefits cases; and even fewer are willing to take cases governed by the ERISA law.
However, with patience and recommendations from local support groups and on-line discussion groups, attorneys can usually be located who are willing to accept cases on either a contingency fee basis (fees are payable only if benefits are obtained). In other cases, you can pay an initial retainer fee and then pay the remaining fee on a contingency basis.
The crucial time to hire an attorney is not when litigation is imminent; instead, make sure you obtain representation no later than immediately after a claim is denied. The attorneys participation in a pre-suit appeal is crucial to success because courts in ERISA cases often limit the evidence under review to the documentation contained in the claim file.
Further, because many ERISA cases are reviewed under a deferential standard which will reverse the denial of benefits only if the insurers decision is found to be arbitrary and capricious; i.e., irrational, an attorneys guidance is essential in creating not just a winning case, which is often not enough, but an airtight case, which is essential to an award of benefits.
If ERISA does not apply, presentation of overwhelming evidence may lead to an award of punitive damages in those states that recognize bad faith claims. An experienced attorney can therefore be invaluable in analyzing the insurers decision and the evidence supporting the denial of benefits. Based on knowledge of prevailing case law, the attorney will suggest what would be the most persuasive evidence and create arguments to rebut the adverse finding.
CFIDS disability cases can be more difficult than those for other conditions. But the burden is not insurmountable. Most judges appear sympathetic to a well-documented case, although some may be hostile those involving limited doctor visits and inconsistencies in the medical evidence.
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Mark D. DeBofsky is a member of the Chicago law firm of Daley,
DeBofsky & Bryant, specializing in disability insurance and Social Security disability
claims. He also serves as adjunct professor of law at the
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July 29, 2004
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