By Peter Casciano, Esq., 301.563.6685
Fact # 1: Getting off on the right foot with insurance companies is critical. The Long Term Disability application form must be completed correctly to maximize your chances of not having to file an administrative appeal of the carrier’s denial letter. The disability date you allege may very well be the most critical piece of information that you provide. This date should coincide with a date when you were still working full time. Also, it should be clear to the insurance company why you have chosen that date. For example, it could be the date when your treating physician told you to stop working altogether. It could be the date of surgery. It could be the date your physical therapy ended due to failure to obtain any improvement. It’s crucial to consider the case as a whole when completing the LTD application form. Sometimes this is difficult because the case is just beginning, but thinking ahead is very important at this stage.
Fact #2: As important as the LTD application is, the physician’s statement can often be more important. Many of the questions on the physician’s statement don’t apply to the claimant. Others are duplicative, as this information is readily available in the actual clinical records. Your physician should be counseled to resist the urge to skip over any sections or write “see attached” to refer to the clinical records. One blank section or vague answer could result in a denial. The physician should do their absolute best on this form, filling it out with as much detail as possible. It’s almost always worth going back to the doctor for more detail to avoid an initial denial. An initial denial will require more work from all involved parties to win on administrative appeal.
Fact # 3: The relevant physicians should all be advised that you have filed for LTD benefits. Carriers routinely send out requests for medical records and/or forms once the application is filed, sometimes without notifying the claimant. Maintaining constant contact with the administrative folks at the doctor’s office is invaluable. That way the claimant or their attorney can monitor the progress of these requests and make sure they are timely processed. I see many cases where a claimant is denied because a physician’s office failed to send back the requested clinical records. Even if those clinical records are considered secondary, or not most important, they should be returned to the carrier per their request.
Fact #4: Once an adverse decision has been issued, either a denial or a termination, you must gather all possible supportive information. The administrative appeal stage of an LTD case is critical for several reasons. It will be your last chance to convince the carrier to change its position. Beyond this stage, an appeal must be filed in court, which can be time-consuming, expensive and emotionally draining. The administrative appeal stage will also likely be your last opportunity to submit new evidence. The federal laws surrounding ERISA LTD claims typically permit little or no discovery, and are usually not resolved through live testimony. Therefore, the evidence that you submit at the administrative appeal stage will likely be the evidence that determines the success or failure of the claim.
Fact #5: The standard of review applicable at the federal court level will have a significant impact on whether your claim succeeds or fails. If the carrier includes language in your plan documents reserving discretion to itself to decide on your claim, then the courts will provide them with a heightened degree of deference. Specifically, the reviewing court will overturn the carrier’s decision only if it is found to be arbitrary or capricious. If that language is missing from your plan document, however, the court will give that underlying carrier decision no deference and issue a fresh decision irrespective of the underlying admin decisions. This kind of review is known as de novo review. There are several kinds of ways that a claimant can force a reviewing court to use do novo review, even if the discretionary language is present in the Plan. However, if the reviewing court is using the arbitrary and capricious standard of review, it will likely be harder to win in federal court.
Fact # 6: Winning Social Security Disability does not guarantee approval of long term disability benefits. There is no requirement that the LTD company approve those found disabled by the SSA. You must develop the LTD claim just like any other and make sure that you force the carrier to approve it.
Fact # 7: In the grand scheme of things, surveillance performed by the carrier doesn’t mean all that much. Sure, the surveillance could catch someone who claims to be wheelchair-bound jumping on a trampoline. However, those cases are by far the outliers. It is far more common to see claimants living their lives consistently with what they have reported and what their doctors have documented. Online surveillance performed by carriers, however, routinely finds problematic information. Sometimes, the information posted to social media is outdated, sometimes it’s taken out of context, and sometimes it just isn’t true. The bottom line is that those placing personal information on the internet during an LTD case, or even leaving up old information, can cause problems for that claimant.
I have tried to hit the high points in this blog, but this is not an exhaustive list. Each case presents unique challenges based on medical records, policy terms, or legal rules. Regardless of which insurance company is processing your claim or appeal, the strategies necessary to win the claim and obtain the benefits you deserve remain the same. Please feel free to call me at 301.563.6685 for a free consultation regarding your Long Term Disability claim.
Andalman & Flynn, P.C. serves clients throughout Maryland and the District of Columbia, offering compassionate, quality service and results-driven representation across a broad range of legal areas. With a concentration on disability benefits law and family law, the firm focuses on cases that impact the rights of everyone, and they are there for clients when responsive legal help is most critical. For more information about Andalman & Flynn, please visit our website or call 301.563.6685.