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. At Riemer Hess, our disability attorneys in New York 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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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. Riemer Hess's disability attorneys in New York 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. Our disability attorneys in New York 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.