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A long term disability policy can be a wise choice; knowing that monthly income will be provided in the event some injury or illness prevents the policy holder from working for an extended period of time can be very reassuring. Unfortunately, many long term disability insurance companies do not evaluate a claim in an objective and unbiased manner. Some of the largest insurance carriers have been fined by the government for unfair tactics in delaying and denying claims with the hope that many eligible claimants will give up and go away.
Claimants who find themselves in such a situation must make a decision; do they fight the insurance company alone or do they seek the assistance of a disability attorney? It doesn’t seem fair to have to hire an attorney to receive benefits from an insurance policy after paying its premiums for so long, but losing an appeal of the denial of benefits leaves the claimant with nothing. Assessing whether to incur the expense of retaining legal counsel becomes a matter of understanding what a long term disability attorney can and cannot do for a claimant.
The Choice of Policy
There are a wide range of options when it comes to choosing a long term disability policy. No NY disability lawyer will be able to alter the terms of the policy that exists, but they can hold the insurance company accountable for what it does say. Although everyone should carefully read and understand any insurance policy they purchase, it is imperative to know, at the very least, the major provisions of a disability policy.
The Waiting Period
How Long Benefits Last
The Definition of Disability
The insurer will likely have a different interpretation than the claimant. In many cases, the language of the policy indicates the definition changes with time. For instance, many policies pay benefits for the first two years if the claimant is unable to perform their “own occupation” and subsequently define it as unable to perform “any occupation.”
The Medical Record
A long term disability attorney, who is knowledgeable and experienced with many medical conditions and their symptoms, can help a claimant by directing the claimant to appropriate professionals, who could provide testing that will help substantiate a disability. For instance, the medical record of a claimant who suffers from cognitive deficits will be improved if those deficits were evaluated by neuropsychological testing administered by a licensed neuropsychologist.
This type of testing is important because there are many instances when an insurer is less than forthright in gathering and evaluating the claimant’s medical file.
One example that is repeatedly seen involves individuals who report chronic fatigue or constant pain. These are subjective in nature; that is, the claimants themselves are providing the evidence often with very little objective evidence from their doctors. Insurers routinely deny claims based on that fact, but the law on the subject is clear; a case cannot be denied simply on the basis of the lack of objective evidence.
Another tactic insurers use to manipulate the medical evidence involves the use of Independent Medical Examiners or IMEs. Theoretically, it may be necessary for an insurer to seek an opinion from an objective third party if the claimant’s existing medical record is not clear. However, it is not unusual for an insurer to provide incomplete or even faulty information to the IME. The IME consequently will conclude the claimant is not disabled.
Insurers have even taken to employing private investigators to conduct clandestine surveillance on disability claimants. While this may be justified in certain specific circumstances, it is now commonly done. The insidious part of the surveillance is that the insurer typically relies only on information that seems to depict the claimant as fully able; video footage may show, for example, the claimant carrying grocery bags into their house, but what is not shown is that the individual has to sit on the porch to rest in between trips.
Other tactics include sending the claimant the wrong claim form or “losing” submitted documentation. To counter these tactics, a disability attorney can monitor the insurer and make certain a full and accurate record is established.
No Additional Evidence Can Be Considered in Federal Court on Appeal
Most employer-provided long term disability plans are subject to the federal Employee Retirement Security Act (ERISA). ERISA has established specific guidelines on appealing a denial of disability benefits. Although it may seem pointless to the claimant who has been denied benefits, the first level of appeal is to the insurer who denied the claim. Insurers are required by law to have an appeal process in place. Typically, this is in the form of an administrative review. For those policies under ERISA, a lawsuit in federal court cannot be initiated until all of the insurer’s administrative remedies have been exhausted.
However, the rules in federal court do not allow the introduction of new medical evidence except under extraordinary circumstances. The insurer has an interest in limiting the evidence the federal court will review as they often manipulate the medical record. A disability attorney may not be able to introduce new evidence in federal court, but they do know that it is possible to “stack the record” with favorable evidence at the administrative hearing level. New evidence may be introduced there. Although the insurer will likely deny the claim anyway, the record is complete and ready for federal review.
