You must strategize to win your long term disability appeal under ERISA. One misstep is all it takes to result in a final denial necessitating litigation. These five steps will help you plan to win your long term disability appeal.
Meet the Deadline to Appeal Your Long Term Disability Denial under ERISA
The most important thing is to appeal by the deadline. In most cases, you only have 180 days to file your long term disability appeal. This deadline is strict. Your insurer is not obligated to give you more time, even if you request it.
If you do not appeal by this deadline, you may be barred from submitting additional evidence in court if litigation becomes necessary. Your long term disability appeal is typically your final chance to submit evidence in support of your claim. Take advantage and make sure you get everything in by the deadline.
Request a Copy of Your Disability Claim File
In most cases, you have a right to review a copy of your insurer’s disability claim file. All you have to do is request it. You can get a sample claim file request here.
The claim file should contain all relevant evidence, documents, and communications within your insurer’s possession. These include:
- Any reports that your insurer obtained from doctors it hired to examine you or review your file;
- Internal notes and email communications that the insurer kept on your file;
- Copies of all documentary medical and/or vocational evidence that your insurer had in its possession;
- Copies of all correspondence and documents that your insurer received from your employer;
- A copy of the relevant long term disability insurance plan document;
- Any internal guidelines that the insurer relied on to deny your claim;
- Copies or correspondence between the insurer and your doctors; and
- Any video surveillance or other investigative reports that your insurer obtained.
Reviewing your claim file will help you see what the insurer relied on and didn’t rely on in denying your claim. Having this information will help guide you as you strategize your long term disability appeal. Consider bookmarking or creating a list of what is in the claim file to help keep you organized.
Get Your Doctor Involved
Your doctor’s involvement is key to winning your long term disability appeal. Talk to your doctor to see if he or she disagrees with the denial.
Often, the insurance company will never bother to contact your treating doctors or fail to give your treating doctors sufficient opportunity to respond. Even worse, the insurance company may communicate with your treating doctor, but grossly mischaracterize or misinterpret what your treating doctor said.
Ask your doctor to respond to your insurer’s denial with a detailed written explanation of your restrictions and limitations. Also ask your doctor to explain his/her disagreement with any reports that your insurer obtained from its doctors.
Having a written response from your doctor will help set the record straight on appeal. Without the support and involvement of your doctor, you are less likely to win your long term disability appeal.
Get Your Own Experts
It’s extremely important to get reports from your own experts. If you get your own expert report, the insurance company is required to consider and weigh this evidence. The appeal may be your last opportunity to get an expert report, so it is best to do it now.
The three most common reports submitted in support of a long term disability appeal are:
The Functional Capacity Evaluation
A Functional Capacity Evaluation (also known as an “FCE”) involves a series of objective tests, practices, and observations designed to evaluate your physical ability to function. The report can objectively demonstrate the limiting impact of your symptoms on your ability to work. The evaluation is most helpful for claimants with physical conditions that cause abnormal movements, weakness, positioning intolerances, limited movement, balance difficulties, numbness, tingling, pain, poor hand coordination, or fatigue with physical activity. The evaluator must be appropriately qualified to perform the FCE.
A Neuropsychological Evaluation can provide a detailed and objective assessment of your cognitive and/or mental abilities. The evaluation measures specific functioning in areas such as processing speed, attention/concentration, and memory. Many conclusions can be drawn from a neuropsychological evaluation. These include your diagnosis, deficits in specific areas of cognitive/mental functioning, and how those deficits impact your ability to meet work demands. The evaluator must be appropriately qualified to perform the Neuropsychological Evaluation.
A Vocational Assessment can provide an expert opinion that details why your specific disability prevents you from working. A vocational assessment can do this by: (a) providing a comprehensive list of your occupational responsibilities; (b) explaining the requirements necessary to perform your job successfully; (c) analyzing whether you are able to meet your specific work demands; and (d) concluding whether you can perform your own occupation or any other occupation. The vocational expert should have appropriate credentials and experience.
These expert reports can substantially bolster your chance of winning your long term disability appeal. Be sure to review the reports carefully and ask the expert to correct any factual or typographical errors prior to submission.
Address Every Reason for the Denial
Carefully review your denial letter and outline every reason why your claim was denied. Common reasons include:
- Lack of objective medical evidence;
- Insufficient or inappropriate treatment;
- Inconsistencies in your medical records and/or doctors’ opinions;
- Medical improvement;
- Unsupported severity of symptoms;
- No evidence of medication side-effects;
- Accommodations would allow you to work (e.g., work from home, use a sit/stand desk); and
- Noncompliance with treatment.
Once you have outlined the reasons for the denial, you should address each issue individually. Also make sure that each concern is addressed by your doctor, if possible. If you neglect to address just one issue, the insurer will be more likely to deny your long term disability appeal.
It takes a lot of careful planning to win your long term disability appeal. Consulting with an experienced long term disability attorney is advised. A long term disability attorney can design a personalized strategy to win your claim and ensure you are set up for success. Don’t challenge your long term disability denial alone.