Have our NY State Disability Attorneys Appeal Your Long Term Disability Claim Denial

Appeals Parameters

You’ve applied for Long Term Disability benefits and your claim was denied, or your LTD claim was initially approved, but the insurer terminated your benefits after a certain number of months or years. What is your next step?  As annoyed as you may be, you unfortunately cannot just sue the insurance company.  The federal law known as ERISA requires that you first appeal the insurer’s adverse determination.  At Riemer Hess, our NY State Disability Attorneys know what is necessary for a successful appeal. We prepare appeals as if they were cases in court.  We have found that if you submit a comprehensive appeal, you show the insurer you are serious and have a better chance to win.  We are aggressive in our appeal approach, and will help you obtain the proof you need to counteract the private disability insurance company’s reasons for the denial and to prove you are unable to work in your own or any occupation.

Is There A Time Deadline Within Which You Must Submit Your Appeal?

Yes, ERISA requires insurers to give you a minimum of 180 days (measured from receipt of the denial letter) to submit your administrative appeal. As mentioned above, ERISA requires you to submit at least one appeal. If you do not submit your appeal within the 180-day deadline, the insurer will deny it as untimely. In addition, the failure to submit an appeal within this timeframe could be treated as a Statute of Limitations violation, preventing a Court from reaching the merits of your case. It is, therefore, imperative that this deadline be satisfied.

What Should You Do When You Receive A Denial Letter?

The first step following the receipt of the denial letter should be to request a copy of your claim file from the insurance company.  ERISA requires, upon your request, that insurer provide you, free of charge, with copies of all documents relied upon in the claim denial. The claim file generally consists of all documents used by the private disability insurance company (e.g., medical records, reports from your treating doctors, reports from the insurance company’s doctors (often called “Peer Review” reports), vocational assessments, transferrable skills analyses, correspondence, surveillance reports and videos, and the insurer’s internal claim notes (often called SOAP notes), etc.).  ERISA requires the insurance company to provide you with your claim file within 30 days of your request. In addition to the claim file, you also should request a statement of any additional material information necessary for you to perfect your appeal and an explanation why such material or information is necessary; a fuller explanation of the reasons for the denial; and a demand that all electronically stored information regarding the you and your claim be preserved.

How Long Will It Take For An Insurance Company To Make A Decision On My Appeal?

Once your appeal is submitted, the insurance company has up to 45 days to render a decision. However, this deadline could be extended for an additional 45 days if the insurer sends you a letter stating there are special circumstances requiring the extension (e.g., your file may still be under review by the insurer’s doctor or the insurer may have requested a vocational review). Therefore, in reality, you should be prepared to wait about 90 days for a decision on your appeal.

Appeals Challenges

When you are appealing a denial of benefits the overall challenge is that you need to convince the same private disability insurance company who denied your claim to reverse itself.  Not only is it difficult to convince anyone to admit that they were wrong, but here we need to convince an insurer to admit it was wrong when it has a financial incentive not to pay you.  Although it is tempting, and perhaps cathartic, to yell at the insurer and demonstrate how unscrupulous it is, it is not going to convince the insurer to change its mind.  In fact, it is almost guaranteed to harden their position.  No one reacts well when you assert they are dishonest. The NY State Disability Attorneys at Riemer Hess have proven strategies for overcoming these challenges, and have a strong record in convincing the insurer to reverse itself.  We do this by preparing comprehensive appeals that address all of the concerns raised by the insurer, and by providing new evidence that changes the claim dynamic.

Additional Evidence Designed to Change the Dynamic

Depending on the nature of your disability, there are a variety of reports, testing and evaluations that will help change the dynamic and help convince the insurer that its denial was incorrect. This additional evidence includes:

1. Functional Capacity Evaluation (“FCE”).  An FCE is a physical examination (typically conducted over a two-day period), performed by a physical therapist, to document your ability to lift, carry, push, pull, sit, stand, walk, and perform other functions necessary to one’s occupation.  An FCE can be particularly helpful when your most prevalent symptom is fatigue – a subjective symptom, which would likely be discounted by the private disability insurance company.  The FCE can provide objective verification as to your level of fatigue, making it difficult for the insurance company to refute.
2. Neuropsychological Testing.  A Neuropsychological Evaluation is useful if you suffer from cognitive symptoms such as an inability to concentrate, focus or pay attention; problems with short-term or long-term memory; problems with processing speed or multi-tasking; etc.  As part of the testing, you are exposed to an extensive series of questions, memory games, puzzles, etc. that examines how well your brain functions and processes information.  Like the FCE, neuropsychological testing will provide objective evidence for your subjective complaints.

1. Vocational Assessments.  A Vocational Assessment is very important in all cases. A vocational expert will determine your occupation, describe the duties of your occupation and determine whether you can perform your duties. If you need to prove that you cannot perform the duties of any occupation, the vocational expert will conduct a Transferable Skills Analysis (“TSA”) (to determine if your education, training and experience have provided you with skills that are transferrable to other occupations); a Labor Market Study (“LMS”) (to determine whether the jobs identified in the TSA exist the local economy); and an analysis as to whether you can perform any of the identified occupations. In other words, a vocational analysis will provide the bridge between the existence of your medical conditions, restrictions and limitations, and exactly why you cannot perform the duties of your own or any occupation. A vocational report also is helpful to rebut a TSA or LMS conducted by the insurer.
2. Rebuttal Reports From Treating Doctors. Insurers often will deny claims based on the opinions of a Peer Review physician who never examined or even spoke with you, or on the opinions of an Independent Medical Examiner who only examined you once. One of the best ways to oppose such a report is to obtain a rebuttal report from your treating doctor. Treating doctors, particularly ones who have treated you for a long time, have superior knowledge of your condition. A rebuttal report should come from a doctor who specializes in the particular area of medicine relevant to your claim. It must be thorough and comprehensive, with specific references to any objective testing, the opinions of other doctors and references to all pertinent medical information. The rebuttal report also should criticize and contradict the opinions of the insurer’s doctor.
3. An Affidavit.  An affidavit is your opportunity to tell your side of the story. It puts a personal spin on your case, so that you are not just a number to the private disability insurance company. In your affidavit, you can elaborate on your medical conditions; how your illness affects your everyday life – both at work and at home; your educational background and work history; your medical treatment; and how your conditions have affected your life and family.  You also could comment on any adverse inferences that may be drawn from an Independent Medical Examination or surveillance, if applicable.
4. Witness Statements.  Written statements from friends, family members and co-workers are helpful to submit because they provide corroboration of your disability.  The witness statements will provide first-hand observations of the difficulties that you have encountered as a result of your disabling medical conditions.  Statements from co-workers are particularly helpful, especially if they can describe the difficulties you had performing your job duties.

Counteracting Surveillance Videos

Many private disability insurance company denials rely heavily on the allegedly damaging evidence contained in video surveillance tapes. Video surveillance is typically performed to spy on claimants who are already receiving benefits, and then used as a reason to terminate your LTD benefits. The surveillance is usually done over the course of 3 consecutive days and usually coincides with a doctor’s appointment or an IME or FCE.  In those situations, the insurer knows exactly where you will be, and when you will be there. Surveillance can be particularly damaging to your claim because it has the potential to contradict the statements you made on an update form such as an inability to bend, walk for long periods of time or carry heavy weight. The disability attorneys at Riemer Hess will help counter the video surveillance by “scoring” it and putting it in perspective.  “Scoring” refers to breaking down all of the activities recorded (e.g., sitting, standing, walking, driving, etc.) by the second to show how long you performed each activity.  We then convert that time into a percentage based on that total length of the videotape.  For example, after scoring the videotape, we may find that while you were observed sitting for 15 minutes total, that comprised less than 1% of the total time surveilled – which would not prove that your are capable of sitting for 6 hours per day as required by sedentary work.

Rebutting All Reasons for the Denial

Unless all the reasons underlying a denial are addressed and rebutted there is little chance that the insurer will reverse itself.  TheNY State Disability Attorneys at Riemer Hess spend a lot of time analyzing the denial letter and claim file making sure we have a comprehensive understanding of each reason (sometimes reading between the lines) for denial.  We then submit a very detailed letter – often in excess of 30 pages – explaining to the insurance company exactly why their adverse decision must be overturned.  From our experience, we have found that taking the time to make strong and fully explained arguments for reversal significantly increases the chances of a successful appeal.

Appeals Do’s and Don’ts

DO’S

1. Submit a Comprehensive Appeal.  An administrative appeal is your last opportunity to submit evidence in support of your claim. Any evidence not submitted during the administrative appeal process generally is not admissible in a future litigation. When you retain the disability attorneys at Riemer Hess, we make sure you take advantage of this opportunity and submit any additional documentation that will support your claim.
2. Timely Appeal the Insurer’s Denial. If your appeal is submitted after the 180-day deadline, the private disability insurance company may refuse to review your claim.  In that case, it is unlikely that a court will review your case.  In other words, the late appeal could be treated as a statute of limitations violation making it difficult, if not impossible for you to prevail in court. Contacting the disability lawyers at Riemer Hess early in the appeals process will help ensure that we have enough time to file a comprehensive appeal on your behalf.
3. Request Proof of Receipt.  Insurers often assert they never received documents sent to them.  Because of this, and because the deadline for an appeal is so important, we always send appeals to insurers in a manner where we will be provided proof of receipt.  We generally send an appeal letter by FEDEX and by fax for added comfort.
4. Maintain a Good Relationship with Your Doctor. During the appeal process, we most likely will need to ask your doctor to answer a questionnaire, prepare a narrative report and comment upon the report of the insurer’s doctor. In other words, we will need your doctor’s cooperation and help.  Although most doctors will not demand payment for this help, we recommend that you offer to pay the doctor for his or her time.  The offer goes a long way in creating good will.  Moreover, even if the doctor does charge for his or her time, it is worth the cost.  That way, we will obtain a professionally prepared report rather than a half-hearted one.
5. Be Cognizant of Surveillance.  While you always should be cognizant of surveillance, you should be particularly wary if the private disability insurance company sends you for an Independent Medical Examination or an FCE. The insurer will know exactly when and where you will be on the day of the examination.  Since insurers generally conduct surveillance over the course of 3 consecutive days, you should also be careful the day before and the day after the examination. It is a good idea to have a friend or family member drive you to and from the exam, and for you to go directly home following the examination.

DON’Ts

1. Submit An Immediate Appeal.  While you likely will be outraged by the denial or termination of your LTD benefits, you should resist the impulse to immediately submit an appeal.  ERISA provides you with 180 days to appeal for a reason.  It takes a lot of time to compile all of the evidence and information you will need for a comprehensive and successful appeal.  Most private disability insurance companies only give one appeal.  If you use up that appeal quickly without proper preparation, your chances of succeeding in a future litigation will be greatly diminished.

1. Ignore the Insurer’s Internal SOAP Notes.  While an insurer’s internal notes can be quite voluminous, typed in a small font size, and difficult to follow, they should not be ignored. The internal notes often contain details of your telephone conversations with your claim representative or the insurance company’s nurse. They may contain the report from the insurance company’s file review physician, notes from a vocational consultant or notes from the insurer’s doctor’s telephone conversation with your treating doctor. The internal notes also may contain certain admissions by the private disability insurance company that could help your claim. The NY State Disability Attorneys at Riemer Hess spend a lot of time reviewing the SOAP notes so that we could address any concerns raised in them, and have you or your doctor address any misstatements contained in the notes of telephone conversations.

1. Forget About the Vocational Aspect of Your Case.  In any disability case, there are two aspects evaluated by the insurer – the medical aspect and the vocational aspect. Therefore, you not only must prove that your medical conditions cause restrictions and limitations, but you also must show that, given your restrictions and limitations, you are unable to perform the duties of your own or any other occupation for which you are qualified by education, training or experience.  At Riemer Hess, our NY State Disability Attorneys generally obtain a report from a vocational expert to make this connection and help prove your case.

1. Bother Your Doctor Too Often. Treating doctors often are more than willing to help their patients by writing rebuttal or narrative reports and working with you to submit the documentation necessary to prove your case. However, doctors are very busy and often get annoyed if you keep bothering them.  At Riemer Hess, our NY State Disability Attorneys try to submit a single request, or make an appointment to speak with your doctor to discuss your claim or complete a form.

1. Attend an IME or FCE Unaccompanied.  The insurer’s doctors have the tendency to misrepresent your statements or their physical examination findings. Therefore, it is always a good idea to attend an IME or FCE with a nurse, friend or family member who can take notes and witness the examination.  A nurse often is your best option as they have medical training, and will be able to identify what types of examinations or maneuvers are being performed. The disability attorneys at Riemer Hess routinely use a nursing service to provide a nurse to attend the IME or FCE with you.