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How to File a Successful Long Term Disability Claim

Disability Wiki.

The insurer’s administrative processes are not just a necessary step in your long term disability claim, but often set the stage for whether your claim will be successful in any subsequent litigation.  They also present a valuable opportunity to bolster your chances of success, both during the administrative process and in litigation.

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ERISA, the law that governs employee benefits, mandates that every long term disability plan maintain a reasonable claims procedure, including a mechanism for deciding your initial claim for long term disability benefits and a mechanism for deciding at least one level of appeal.  All determinations must be made within timeframes specified in the Department of Labor regulations.  See, 29 CFR §2560.503-1.  Although ERISA is silent on the issue, Courts require you to exhaust all administrative remedies at the insurance company prior to the commencement of a lawsuit.

The following is a list of strategies to remember during the critical administrative process.

Adhering to Applicable Timelines is a Must

Strict adherence to the time limitations specified in the Policy and the Department of Labor Regulations is critical.  Failure to satisfy the requirements could cause the dismissal of an eventual lawsuit.

Applications for STD benefits usually must be submitted within 30 days of the date your client first went out on disability (the “Date of Disability”).  Besides the STD application, most LTD policies require a claimant to submit a Notice of Claim within 20 or 30 days from the Date of Disability.  The Notice of Claim is a short letter alerting the insurer that a claim for LTD benefits will be submitted.  The insurer then will send you forms that must be completed for submission of the LTD claim.  These forms are known as the Proof of Claim (or Loss), and usually must be submitted to the insurer within 90 days from the end of the Elimination Period.  The “Elimination Period” is the waiting period from the Date of Disability to the first date in which the claimant is entitled to benefits.  In most policies, the Elimination Period is 180 days, but sometimes it is 90 days or some lesser period.  Therefore, if the Elimination period is 180 days, Proof of Claim must be submitted no later than 270 days from the Date of Disability.

If Proof of Claim is not submitted within the specified timeframe, the claim will be treated as a late claim.  If you want a successful Long Term Disability Claim, don’t let this happen!  Depending on your State, you may need to establish a reasonable basis for the delay.  In some States this may be mitigated by the fact that the insurer must then establish that it was prejudiced by the delay, but it is best to avoid this situation in the first place.  Follow the deadlines as if they were statutes of limitations.

The insurer has 45 days to decide the initial claim.  This deadline then could be extended by two additional periods of 30 days.  The insurer must inform the claimant of the circumstances requiring the additional time.  29 CFR §2560.503-1(f)(3).  Therefore, as a practical matter, the insurer has up to 105 days to decide the initial claim.

If your claim is denied, you have 180 days to appeal the decision and present new evidence of disability.  29 CFR §2560.503-1(h)(3)(i) and (4).  The insurer then has up to 45 days to decide the appeal.  This deadline then could be extended for an additional 45 days if the insurer sends the claimant a letter stating there are special circumstances.  29 CFR §2560.503-1(i)(3).  Some insurance companies provide an opportunity for a second “voluntary” appeal, but this is not mandated by the regulations.  If and when your appeal is denied, only then litigation can be commenced against the insurer.  If the appeal is voluntary, completing it is not mandatory before filing a lawsuit.

Develop a Persuasive Narrative – Your Chance to Tell Your Story

Develop a narrative that effectively establishes your disability.  “Disability” does not mean you must be confined to a bed or wheelchair.  Rather, disability connotes a functional status in relation to the functional requirements of an occupation.  Insurers will want to know why you were able to work yesterday but not today.  If you have an illness or injury that is not usually disabling, the insurer will want to know why it is disabling in your case.  If you could do some activities such as driving, shopping and the like, but cannot do the “Material Duties” of your job, the insurer will require an explanation why.

Your disability narrative must answer all of these questions and more.  It not only is the insurer who will want the answers to these questions, but also the judge eventually assigned to your case.  If a judge believes you are disabled and deserving of benefits, she will find a way to rule in your favor. Conversely, if the judge is not convinced you are disabled, she will rule against you no matter how many procedural irregularities you establish in your favor.

In setting forth your disability narrative, do not be confined to the disability application form, which is drafted for the insurer’s benefit, not yours.  The form often gives just two lines to describe the nature of your disability.  Write, “see attached rider” on the form, and then attach a detailed narrative describing your disability.  The narrative should answer the questions posed above and should describe the Material Duties of your occupation.  We often attach a statement setting forth a typical day at work, focusing on the physicality of the job (the amount of standing, walking, etc.), the amount of travel, the fast pace and stress of the job, and the cognitive demands of the job.

The narrative must describe you in the most sympathetic light possible, so you have the best chances at winning the Long Term Disability Claim.  For instance, if applicable, describe the extraordinary steps you have taken to get better.  Describe how active you were prior to your disability and describe how this disability has restricted your life.  Also, describe your desire to return to work and any steps taken to hasten a return to work.

Use It or Lose it and Be Creative

The administrative process is your one and only chance to submit evidence to support your claim.  Any evidence not submitted during the administrative process generally is not admissible in a future litigation.  Therefore, during the initial application and during the appeals process, pack the file with anything that will support your claim.  This includes all treatment notes, objective test results and treating doctor reports.  Also, be creative.  Submit an affidavit from describing your work, your illness, and how the illness has affected your ability to work.  If you are visibly disabled, submit a day in the life video or video statement.  Submit your “bad news” diary (a diary recording frequency and duration of headaches, etc.).  Submit to a functional capacity evaluation, a neuropsychological evaluation, a vocational evaluation and/or an independent medical examination.  Because you probably will not have an opportunity to testify in Court, think about what you could do to make your claim come to life before a judge.  The Court must see you as a person, not just a party to a lawsuit.  By enabling the Court to visualize what happened to you, you will have a greater chance of succeeding in Court, and a greater chance that the insurer will grant your claim in the first place.

Corner the Insurer for Your Best Shot at a Successful Long Term Disability Claim

ERISA requires insurers to provide the specific reasons for the denial of a claim.  29 CFR §2560.503-1(g).  Before filing your appeal, ask for a more specific description of the reasons for denial, and specifically ask the insurer to tell you what is needed to perfect the appeal.  Whatever the answer, it is win-win for you.  If the insurer does not respond to your request in detail, you have just established grounds for establishing that the insurer denied you a full and fair review of your claim.  If the insurer specifies what is missing, you have an opportunity to provide it.  If the insurer again denies your appeal, argue that the insurer unreasonably moved the goal posts when you provided the information it initially sought.

Address All Points and Concerns Raised by the Insurer

The administrative appeal is your only opportunity to refute the reasons for denial raised by the insurance company.  Therefore, address every point or concern in the denial letter.  For instance, if the insurer indicates you did not obtain an MRI in support of your claim, then make sure you get the missing MRI (or undergo a new MRI), or have your treating doctor explain in a report why the MRI is not an appropriate diagnostic tool.  If this is not done, the insurer will argue (most likely successfully) it gave you the opportunity to obtain needed proof and despite this opportunity, your failed to furnish the missing proof.  To make sure you address every point and concern, mark up the denial letter, numbering each point and concern raised by the insurer.  If you now have points numbered from 1 to 10.  Address all 10 for your best chances at winning a long term disability claim.

Choose the Right Structure For Your Appeal

Here’s your chance to be creative.  Because you can present any evidence “relevant” to your disability, it’s crucial to structure your appeal to prioritize the evidence in a favorable manner.  Much like preparing a brief, your strongest arguments go first, together with all the objective evidence of disability.  Besides presenting any new evidence, your appeal also must be structured to criticize the points raised in the denial or discontinuation letter.  Remember, because this is still an internal appeal, it may not be in your best interest to antagonize the insurer by attacking the “good faith” of the claims staff.

Educate the Judge – Don’t Assume

Even though the case is not yet in litigation and may never require it, the administrative process is the time to educate the judge as to the specifics of your occupation and disabling condition.  Regarding your occupation, make sure the record includes a job description by you, a job description from your employer, a printout of the job classification from O*NET (www.onetonline.org), and the description of the occupation in the Dictionary of Occupational Titles published by the U.S. Department of Labor.  Also, if possible, have a vocational expert perform an evaluation of your occupation.  Regarding your medical condition, do not assume the Judge is knowledgeable.  Pack the record with scholarly literature about the condition, plus any criteria the CDC or other authoritative body has about the condition.

Take Advantage and Tell Your Story

In conclusion the administrative process delivers a valuable opportunity to tell your story in the best way possible to bolster your chances of successful Long Term Disability Claim, both during the administrative process and in litigation.

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