TBI Disability Center

Disability Wiki.

Young man with trauma of the headIf you or someone you love is facing the complex challenges of a Traumatic Brain Injury (“TBI”) coupled with the intricacies of Long Term Disability (“LTD”) claims, you’re not alone. This page serves as a comprehensive guide to understanding TBI within the context of LTD claims. From the medical aspects of diagnosis to the legal avenues available for securing LTD benefits, our TBI Disability Center aims to be a reliable resource for claimants, medical providers, and attorneys alike.

By concentrating on TBI, we aim to shed light on these complexities, provide actionable steps for each stage of the LTD claims process, and offer tools and resources to help you build a solid case, whether you are a claimant, a healthcare provider, or a referring attorney.

Understanding TBI

Traumatic Brain Injury is unlike any other type of injury for several reasons. Firstly, the symptoms can range from mild to severe, and the long-term consequences can be unpredictable. Navigating through TBI-related challenges is often a taxing, emotionally draining process— not just for the person affected but also for their families and loved ones. Secondly, when it comes to claiming long term disability benefits, TBI cases are often complicated by unique challenges, including varying symptoms, lack of visible evidence, and the skepticism of insurance companies.


What is TBI?

Traumatic Brain Injury (“TBI”) is a form of acquired brain injury caused by an external force, such as a fall, car accident, or a blow to the head. The severity can vary from mild to severe, affecting brain functions to different extents. In the context of LTD claims, even a mild TBI can have significant consequences, especially for those engaged in mentally or physically demanding occupations.

According to the Centers for Disease Control and Prevention, an estimated 2.87 million TBI-related emergency department visits, hospitalizations, and deaths occurred in the United States in 2014 alone. TBI is not just a fleeting medical condition; it often results in prolonged symptoms that can severely impact your ability to work and carry out daily activities, making it a significant focus in the realm of disability claims.


How is TBI diagnosed?

The diagnostic process for a TBI usually starts with an immediate medical assessment, commonly using the Glasgow Coma Scale (“GCS”) to evaluate the initial severity of the injury. After this, imaging tests like CT scans or MRIs are often employed to assess the extent of the brain damage. Subsequent evaluations might include neuropsychological tests, which are particularly crucial for establishing the scope of cognitive impairments that could be vital evidence in a long term disability claim. Proper diagnosis is the first step in a series of medical and legal processes that could affect your eligibility for disability benefits.


How can TBI impact your ability to work?

The repercussions of a TBI extend beyond the immediate medical symptoms. Physically, the injury could lead to a range of symptoms from headaches and nausea to loss of motor skills or chronic pain. Emotionally, TBI victims may experience mood swings, depression, or anxiety. The cognitive impact can be very severe.

When it comes to disability, even a mild TBI can result in significant challenges. For instance, if your occupation requires high-level cognitive functions, attention to detail, or heavy physical labor, even mild symptoms could render you unable to meet the demands of your job. According to the Brain Injury Association of America, 3.5 million Americans sustain a TBI each year, and many of those injuries result in long-term disabilities.

Navigating the long term disability claims process with a TBI can be complex. The variable and often invisible nature of TBI symptoms can make it difficult to provide “objective evidence” often sought by insurance companies. This puts a premium on accurate, thorough medical documentation and the need for specialized legal advice.


Key Terms in LTD Policies

What are the basic definitions you should know?

Entering the world of Long Term Disability (“LTD”) insurance can feel like learning a new language. Terms like “Elimination Period,” “Own Occupation,” and “Pre-existing Condition” are thrown around, making an already complicated process even more daunting. But understanding these terms is critical; they’re not just legalese but essential elements that shape your claim and the benefits you may receive.  

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What does “Elimination Period” mean and why is it important?

The “Elimination Period” is essentially the waiting period before your LTD benefits kick in. It can range from 30 days to even 180 days, depending on your policy. This period is not just a waiting game but a critical time to gather all necessary medical documentation to support your claim. This is especially true when dealing with a TBI, where symptoms may evolve over time. Keeping a detailed account during this period can be crucial for your claim’s success.


What do “Own Occupation” and “Any Occupation” really mean?

The terms “Own Occupation” and “Any Occupation” are used to define what qualifies as a disability under your LTD insurance policy. “Own Occupation” means that you’re considered disabled if you can’t perform the tasks required by your specific occupation due to your disability. For instance, if you were an architect who suffered a mild TBI, and you find it difficult to concentrate on intricate designs, then you may be considered disabled under the “Own Occupation” definition.

On the other hand, “Any Occupation” means that you’re only considered disabled if you can’t perform the duties of any job for which you’re reasonably qualified, considering your training, education, and experience. This is a stricter definition and can be more challenging to meet.

Many LTD policies initially employ the “Own Occupation” definition and then switch to the “Any Occupation” definition after a certain period, often 24 months. This transition can make it more difficult to continue receiving benefits and requires additional preparation and evidence to support your ongoing disability, particularly for conditions like TBI that may have both physical and cognitive implications.


What about Mental Illness Limitations?

Many LTD policies include clauses that limit benefits for mental or nervous disorders, often to 24 months. It’s not uncommon for insurers to wrongly categorize TBIs under these mental illness limitations to reduce the benefit period. If you’re dealing with a TBI, it’s crucial to have medical documentation clearly establishing that your disability is due to a physical injury to avoid falling under this limitation.


How is the benefit amount determined?

Your benefit amount is usually a percentage of your pre-disability income, often between 60% and 80%. Some policies may have caps on the maximum monthly benefit you can receive. Understanding your benefit amount is crucial for financial planning, particularly if you’re dealing with long-term disabilities like a TBI, which can lead to unforeseen medical expenses and lifestyle changes.


Why should you be cautious of “Pre-Existing Condition” Clauses?

A “Pre-existing Condition” clause might exclude you from receiving LTD benefits if it’s proven that your disability is due to a condition you had before your LTD coverage started. In the context of TBI, a previous minor head injury could potentially complicate your claim, although each case is unique. Therefore, being upfront and detailed about your medical history is important to avoid unexpected denials. 

Always talk to an attorney about how a pre-existing condition clause could impact your LTD claim.  Note that some states limit enforceability of such terms.


How can “Maximum Benefit Period” impact your financial planning?

The “Maximum Benefit Period” is the maximum amount of time you can receive LTD benefits, often lasting up to retirement age or a specified number of years. When you’re dealing with a long-term issue like TBI, understanding how long you can receive benefits will significantly influence your financial planning and overall peace of mind.

We understand that diving into these terms can add stress to an already anxiety-ridden time, especially when you’re grappling with a life-altering injury like a TBI. However, being well-informed can make the difference between a successful LTD claim and an unfortunate denial.


The LTD Claims Process

Navigating life after experiencing a Traumatic Brain Injury (“TBI”) is a multifaceted challenge. The emotional, cognitive, and physical toll can be overwhelming, leaving you with a host of difficulties to manage. Adding financial instability into the mix only makes things harder. If you’re struggling with a TBI and can no longer work, filing a LTD claim may offer a financial lifeline. However, it’s important to know that the process is often anything but straightforward.

The process from filing your initial claim to actually receiving benefits is fraught with complex paperwork, rigid deadlines, and myriad requirements that can make anyone’s head spin. Insurance companies are keenly aware of how overwhelming this process can be for claimants—especially those already coping with a disabling condition like TBI. Unfortunately, some insurers exploit this complexity as a tactic to wear down claimants, knowing that a certain percentage will get overwhelmed and give up on their claims. Below we’ll answer common questions about LTD claims process, giving you the tools you need to navigate this challenging landscape more effectively.


When should you file your TBI disability claim?

Timing is of the essence when you’re considering filing an LTD claim for a TBI. Insurance policies usually provide specific deadlines for notifying your insurance company about your condition and formally submitting your claim. Missing these deadlines could have severe consequences, including the outright denial of your claim. Therefore, the moment you realize your TBI is negatively affecting your ability to work, initiate the claim process. Given the cognitive symptoms that often accompany TBI—like memory issues or attention deficits—even minor delays can have outsized repercussions.


What documentation will you need?

Inadequate documentation is a common reason many LTD claims are denied. For a TBI, you’ll require a robust set of medical documentation that highlights the severity of your condition and its detrimental effects on your ability to perform your job. The medical records should ideally include:

    • Detailed physician notes
    • MRI or CT scan reports
    • Neuropsychological testing
    • Testimonies from healthcare providers, such as neurologists, psychologists, and occupational therapists

Furthermore, real-world observations can significantly bolster your claim. Statements from colleagues, supervisors, or even friends and family who can provide firsthand accounts of your difficulties can serve as compelling evidence.


How do you submit your TBI disability claim?

Filing your claim isn’t just about gathering documents; it’s also about presenting them in a way that fulfills your insurer’s requirements. Most insurers provide a claim form that asks for particulars about your occupation, the nature of your medical condition, and the ways your disability affects your job capabilities. This form will often require meticulous attention to detail—especially for TBI patients who experience cognitive or memory challenges. Ensure you complete all sections accurately and then submit the form along with your array of supporting documents.


What happens after you file your claim?

Once your claim has been submitted, the insurance company initiates a complex assessment process. This phase may include requests for additional medical evaluations, Functional Capacity Evaluations, and even interviews with claims analysts. This process can be particularly stressful for individuals dealing with TBI symptoms such as cognitive fog, emotional volatility, or fatigue. It’s important to know that insurance companies often capitalize on the exhaustive nature of this process, hoping to deter claimants.


Can you appeal if your claim is denied?

A denial can be disheartening, especially when you’ve complied with all the requirements. Most LTD policies, however, have an in-built appeals process. Should you find yourself facing a denial, you’ll need to refine your evidentiary support. A disability attorney experienced in LTD claims can help make your case as compelling as possible during the appeal process.


What are the common pitfalls to avoid?

Overlooking Deadlines: Why is Timing Crucial?

One of the most common mistakes is overlooking deadlines set by the insurance policy. Missing these can severely hamper your chances of securing benefits. Be meticulous about tracking all timelines and take action well before the due dates. The stress and cognitive difficulties that come with TBI make it all too easy to lose track of time.

Inadequate Documentation: How Can This Affect Your Claim?

Another pitfall is insufficient or incomplete documentation. Medical records, test results, and personal testimonials should collectively paint a detailed picture of your disability and its impact on your work capabilities. Failing to provide comprehensive evidence can result in claim denial. For those with TBI, it’s essential to include documentation that specifically focuses on how even “mild” TBIs can have debilitating effects, especially if your occupation demands high cognitive function.

Misunderstanding Policy Definitions: How Can This Lead to Denial?

Many claimants don’t fully understand the terms of their LTD policy, such as the definitions of “own occupation” versus “any occupation.” This lack of understanding can lead to the wrong categorization of your disability status, affecting your eligibility for benefits. Additionally, some insurance companies wrongfully categorize TBIs under mental illness limitations, so be vigilant about how your disability is being defined.

Underestimating the Benefit Amount: Why is it Important?

Another common error is underestimating the amount of benefits you’re entitled to, or not understanding how these benefits are calculated. This could mean you end up receiving less than what you are eligible for. Make sure you’re well-acquainted with your policy’s provisions concerning benefit amounts.

Succumbing to the Complexity: How Does the Insurance Company Benefit?

The process is designed to be confusing, and insurance companies often capitalize on this. They may seek to wear you down by demanding repetitive documentation, or by stretching the assessment and decision-making timeline. A certain percentage of claimants, overwhelmed by the labyrinthine process and volume of paperwork, give up on their claims. Don’t let this happen to you; consider seeking professional guidance from an attorney.

Navigating the LTD claims process following a TBI is an arduous journey, filled with complex paperwork and stringent requirements that can be overwhelming. Given that insurance companies often exploit this complexity to deter claimants, it’s crucial to arm yourself with comprehensive knowledge and possibly professional assistance to effectively maneuver through this challenging ordeal.


Proving Your TBI Claim with Evidence

Why is evidence crucial?

Evidence is the linchpin that holds your Long Term Disability (“LTD”) claim for a Traumatic Brain Injury (“TBI”) together. Insurance companies often require robust proof to validate the severity and limitations imposed by your TBI. Simply having a diagnosis is not sufficient; you need to demonstrate how this injury significantly impacts your ability to work. A well-substantiated case can be the difference between approval and denial, and it also sets the stage for any necessary appeals down the line.


What types of evidence can be used?

Building a strong case often involves a blend of different types of evidence:

    • Medical Records: These should include not only your initial diagnosis but also ongoing treatment plans, medications prescribed, and progress or lack thereof.
    • Advanced Neuroimaging: Traditional imaging like CT scans or basic MRIs may not be enough. Advanced neuroimaging such as fMRIs and PET scans offer more detailed views of brain function and are often considered more conclusive.
    • Testimonies: Statements from healthcare providers can offer clinical insights into your condition. Equally important can be testimonies from colleagues or supervisors, who can affirm how your performance at work has been affected post-injury.
    • Vestibular Evaluations: These specialized tests assess your balance and spatial orientation, functionalities often compromised in TBI cases. Anomalies in these tests can provide objective evidence of your limitations.
    • Neuropsychological Evaluations: These assessments are designed to measure cognitive function and can be vital in demonstrating how your TBI has impacted mental processes like memory, problem-solving, and attention span.
    • Vocational Assessments: These are comprehensive evaluations that consider your medical limitations and how they impact your ability to perform specific job tasks. They can be invaluable in demonstrating you meet your policy’s definition of disability.
    • Day-in-the-Life Videos: Though not as commonly utilized, these videos can be extremely persuasive in visually portraying the extent of your limitations on a typical day.


How do you compile your evidence?

Collecting evidence can be an arduous task, but its importance cannot be overstated. Here’s how to go about it:

    • Start Early and Continuously Update: As soon as you realize that your TBI is affecting your work, start compiling your medical records and other evidence. Also, as you undergo more tests or treatments, make sure to update your evidence file.
    • Diversify Sources: Obtain records and testimonies from a range of healthcare providers, including specialists who have conducted your advanced imaging and vestibular or neuropsychological evaluations.
    • Thoroughly Review Evidence: Before submitting, review your records for completeness and accuracy. Any discrepancies or inconsistencies can be grounds for denial.
    • Seek Expert Assistance: Given the complex nature of TBI and its varied symptoms—cognitive, emotional, and physical—it can be incredibly beneficial to consult professionals experienced in LTD claims for TBI. They can help you identify any gaps in your evidence and guide you through this complicated process.

A TBI claim demands robust, diverse, and compelling evidence. This is especially true given the emphasis insurance companies place on “objective evidence,” making advanced tests often necessary for claim approval. Ensuring you have a comprehensive set of evidence is not just advisable but often crucial for the success of your claim.


What Doctors Should Know

Why are medical records important for your patient’s disability claim?

Medical records serve as the foundation upon which a successful Long Term Disability (“LTD”) claim is built, especially for complex conditions like Traumatic Brain Injury (“TBI”). They provide a chronological account of the diagnosis, treatment, and the evolution of your condition over time. These documents are crucial for painting a comprehensive picture of how the TBI impacts your patient’s daily life and ability to work. Without this backbone of evidence, establishing the severity of their condition to the insurance company becomes nearly impossible.

Additionally, medical records serve as a rebuttal to insurance company denials. Insurance companies are notorious for scrutinizing LTD claims meticulously, looking for any inconsistencies or gaps in the evidence to justify a denial. When your patient submits a well-documented medical record, it makes it more challenging for the insurance company to dispute their claim. This comprehensive documentation can serve as a strong rebuttal to potential denials, making it harder for insurance companies to dispute your patient’s disability status on the grounds of insufficient evidence.


How much detail do my patient’s medical records need to contain?

In the realm of disability claims for TBI, the devil is indeed in the details. A record that simply states a diagnosis without detailing the range of symptoms, their severity, and their impact on your patient’s work and daily activities will not provide a strong foundation for their claim. Comprehensive records will include diagnostic tests, treatments, medications, and your notes on how your patient’s condition is progressing or deteriorating. The more detailed the record, the more compelling your patient’s case becomes.

Incomplete or ambiguous medical records are a claimant’s worst enemy. Any inconsistencies, gaps, or ambiguities give insurance companies an opportunity to reject your patient’s claim or at least delay the approval process. Ambiguities can be interpreted in favor of the insurer, often resulting in denials that could have been avoided with more meticulous record-keeping.

The importance of medical records in the context of an LTD claim for TBI cannot be overstated. They serve not just as evidence but as a powerful tool for countering insurance company tactics aimed at minimizing or denying your patient’s benefits. Therefore, both the depth and the accuracy of these records are paramount for a successful claim.


What medical documentation can support your patient’s claim?

Medical documentation that can support your patient’s LTD claim for TBI include:

    • Diagnostic Tests: When it comes to TBI, diagnostic tests go beyond your standard MRI or CT scan. Advanced neuroimaging tests, such as functional MRIs (“fMRIs”) and Positron Emission Tomography (“PET”) scans, offer a more detailed view of brain activity and structural abnormalities. These tests can capture subtle changes in brain function that traditional scans might overlook, providing irrefutable objective evidence of your patient’s condition. Insurers often demand robust objective evidence, and these advanced diagnostic tools can strengthen your patient’s case substantially.
    • Symptoms Documentation: TBIs can present a wide range of symptoms, from cognitive impairments to emotional instability. It’s crucial that your patient’s medical records meticulously document every symptom they experience, no matter how trivial it may seem. For example, if your patient’s TBI causes periods of forgetfulness or “brain fog,” that needs to be in their record. Even symptoms like irritability or emotional outbursts can be indicative of a more severe underlying issue related to your patient’s TBI. Such comprehensive documentation can help relate the symptoms to your patient’s inability to continue in their occupation, particularly if their job demands a high level of mental or emotional stability.
    • Treatment Plans: The treatment plan documented in your patient’s medical records should not only include medications or therapies they are undergoing but also any recommendations for vocational or physical rehab, or even specialized evaluations like vestibular evaluations for balance and dizziness. These are particularly relevant in TBI cases where symptoms might affect multiple aspects of physical and mental function. Your patient’s treatment plan showcases the lengths to which they are going to manage their disability, which can counter any insurer’s assertion that they are not doing enough to mitigate their condition.


How can doctors assist in the claims process?

Early Identification and Documentation

    • Importance of Timely Diagnosis: Receiving a timely diagnosis for a TBI is of paramount importance. The sooner a TBI is diagnosed, the quicker appropriate treatment can commence, potentially improving long-term outcomes. In terms of a disability claim, an early diagnosis establishes a medical record trail from the earliest stages, making it more difficult for insurance companies to question the onset or legitimacy of your patient’s disability. This initial diagnosis often acts as a timestamp that can be used to gauge the progression of your patient’s condition.
    • Initial Documentation Guidelines: Doctors should ensure that initial medical records are thorough and encompass a range of elements. These should include the specific diagnostic tests performed, such as CT scans or MRIs, their results, and the initial treatment plan, which might include medications, therapy, or surgical interventions. Thorough initial documentation is vital, as these records may be examined in detail to confirm the onset date of your patient’s disability.

Ongoing Patient Evaluations

    • Monitoring Progress or Deterioration: Patients with TBI should undergo regular medical evaluations to track the progression or stabilization of their condition. Doctors should document not only symptoms but also the patient’s response to treatment over time. For instance, if cognitive functions are deteriorating despite medication, this needs to be clearly documented.
    • Updates and Addenda to Medical Records: Doctors should think of medical records as living documents that require constant updating. Every change in medication, every new symptom, and every incremental result from diagnostic tests should be promptly recorded. Such updates can fend off insurance claims suggesting that the condition is stabilized or improving.

Providing Specialized Documentation

    • Functional Capacity Evaluations (“FCEs”): Functional Capacity Evaluations are often used to measure your patient’s physical and mental capabilities in relation to their job tasks. FCEs often include a battery of standardized tests and may incorporate situational role-playing exercises to assess your patient’s limitations. For someone with a TBI, an FCE can demonstrate how cognitive or physical impairments impede their ability to perform specific job duties, making them valuable pieces of evidence for an LTD claim.
    • Neuropsychological Evaluations: Neuropsychological evaluations are particularly crucial for TBI cases because they offer a comprehensive look at cognitive functions, including memory, problem-solving, and attention. These evaluations usually involve a series of tests administered by a neuropsychologist and can provide quantifiable data about the cognitive impairments resulting from your patient’s TBI. This objective data can be compelling evidence, especially when insurance companies are demanding robust proof of disability.
    • Vestibular Evaluations: Vestibular evaluations assess balance and spatial orientation issues, which are common after a TBI. These tests can be administered by audiologists or other specialists trained in vestibular disorders. Evidence of vestibular dysfunction can strengthen your patient’s claim, especially when arguing that their TBI has left them unable to perform tasks that require balance, movement, or spatial orientation.
    • Other Specialized Testing for TBIs, Such as Neuro-Ocular Evaluations: Additional specialized testing might include ocular evaluations to assess vision-related issues stemming from your patient’s TBI. These can be especially pertinent if your patient’s job involves tasks that require depth perception, focus, or fine motor skills related to vision. Such tests can serve as supplementary evidence when standard medical records may not sufficiently capture the extent of your patient’s limitations.

Communication with Legal Teams

    • Importance of Being Available for Consultation: Having an open line of communication between your patient’s medical team and their legal advisors can be a game-changer in their LTD claim. Doctors’ availability for quick consultations or clarifications can offer timely insights that can significantly influence the direction and effectiveness of your patient’s legal strategy.
    • How to Prepare for Depositions or Testimonies: Doctors should be well-prepared to provide detailed, fact-based testimonies that align with the medical evidence when required. Preparation could include reviewing medical records, test results, and even consultation with legal teams to understand what aspects to emphasize during their testimony.

In essence, doctors play a multi-faceted role in the LTD claims process for TBIs. From early identification and thorough documentation to specialized evaluations and legal consultations, a healthcare provider’s comprehensive and accurate input can be a patient’s greatest ally in securing the benefits they need and deserve.


What Attorneys Should Know

Traumatic Brain Injuries (“TBIs”) present a complex landscape that is unlike many other injury or disability cases. The symptoms can be both overt and covert, impacting physical, cognitive, and emotional functions. Furthermore, TBIs are highly variable, meaning each case may present unique challenges requiring customized legal strategies. This complexity often requires specialized medical evidence and, potentially, the expertise of multiple types of attorneys: Personal Injury (“PI”), Workers’ Compensation (“WC”), Social Security Disability (“SSD”), and Long Term Disability (“LTD”).


What are the typical challenges in TBI claims?

    • Complex Medical Evidence: TBIs often present with a variety of symptoms that are not easily captured by traditional medical tests like X-rays or simple MRIs. For this reason, advanced neuroimaging techniques like Diffusion Tensor Imaging (“DTI”) may be necessary to highlight the presence and extent of brain injuries. Vestibular evaluations can reveal issues related to balance and spatial orientation—common complaints among TBI victims. Neuropsychological assessments go a step further by identifying cognitive and emotional impairments. Gathering all this specialized medical evidence can be challenging, time-consuming, and expensive, but is critical for supporting the claim.
    • Variability of Symptoms: The symptoms and severity of TBIs can vary widely among individuals. Some may experience headaches, balance issues, or cognitive fog, while others may suffer from mood swings and emotional instability. This wide array of symptoms makes it difficult to create a standard narrative that juries, judges, or claim adjusters can easily follow. Each TBI case is unique, necessitating a tailored approach to gathering evidence and presenting the claim. This can pose significant challenges for attorneys who must capture this variability in their legal strategy.
    • Insurance Company Tactics: Insurance companies are businesses first and foremost, and they have various strategies to minimize the financial impact of claims. One such tactic is to misclassify TBI as a mental illness, for which many policies have limited benefits and shorter benefit periods. This wrongful categorization can severely affect the amount and duration of benefits a claimant receives. Insurance companies might also engage in “surveillance,” capturing footage or images of the claimant in activities that they claim are inconsistent with the TBI symptoms reported. They can also request independent medical examinations by doctors of their choosing, who may minimize the impact of the TBI to reduce claim costs. Being aware of these tactics allows attorneys to better prepare and safeguard their clients’ interests.


What are the legal framework differences?

    • The Unique Nature of ERISA in LTD Claims: For attorneys who specialize in personal injury, workers’ compensation, or Social Security Disability, the rules that govern LTD claims, particularly under the Employee Retirement Income Security Act of 1974 (“ERISA”), can be an unfamiliar territory. ERISA is a federal law that sets standards for most voluntarily established retirement and health plans in private industry. Unlike PI, WC, or SSD claims, LTD claims often fall under this unique federal statute, which has its own procedural requirements and legal hurdles.
    • The Importance of the Record in ERISA Claims: One major difference is the importance of the “administrative record” in ERISA-regulated LTD claims. Unlike PI or WC cases, where you may have broad latitude to introduce new evidence during litigation, the administrative record is generally the only evidence considered if an LTD claim goes to court. This means that all pertinent medical records, vocational assessments, and other evidence must be submitted during the initial claim and appeal process, making the initial filing even more critical.
    • Standard of Review in ERISA Cases: Another notable difference is the “standard of review” applied in ERISA cases. If the policy grants “discretionary authority” to the insurer to interpret terms and make benefit determinations, courts will often review the insurer’s decision under an “arbitrary and capricious” standard, which is deferential to the insurer. This is vastly different from the de novo standard commonly used in other legal frameworks, where the court looks at the facts anew, without giving weight to the prior decision of the insurer.
    • Nuanced Evidentiary Requirements: Moreover, the types of evidence considered admissible or persuasive can vary significantly between these legal frameworks. What counts as compelling evidence in a PI or WC case may not hold the same weight in an ERISA-governed LTD claim. For example, while a WC case may focus more on incident reports and immediate physical injuries, LTD claims, particularly those concerning TBIs, may require specialized medical tests and vocational assessments to prove disability over a longer term.
    • Offsets and Overlaps in Benefits: Another area where the lack of familiarity with LTD can trip up PI, WC, or SSD attorneys is in the realm of “offsets.” LTD policies often contain provisions that allow the insurer to reduce the disability benefits by the amount received from other sources, such as a WC settlement or SSD benefits. Failure to account for these offsets when negotiating settlements in PI or WC cases can leave the client with reduced LTD benefits, or even an overpayment that has to be refunded to the LTD insurer.

Given these complexities and differences in legal frameworks, it’s critical for attorneys across these specialties to collaborate and strategize comprehensively when representing clients with TBI claims. This ensures that the client’s diverse needs are met holistically, rather than in a piecemeal fashion.


How can attorneys collaborate?

Why Personal Injury and Disability Attorneys Should Work Together

In cases involving traumatic brain injuries (TBIs), there is often a crossover between personal injury law, workers’ compensation, Social Security Disability, and LTD claims. Given the overlapping yet distinct legal frameworks governing each area, attorneys specializing in different aspects need to collaborate to ensure comprehensive representation. Personal injury (PI) attorneys, who may be adept at securing immediate settlements for physical injuries and emotional distress, should coordinate with disability attorneys who are experts in navigating the intricate requirements of LTD claims under laws like ERISA. This multi-disciplinary approach allows for a cohesive strategy that maximizes the client’s total benefits and minimizes any negative impacts one claim may have on another.

Steps to Facilitate Effective Collaboration

    • Early Communication: As soon as it is known that a client has multiple claims, such as PI and LTD, attorneys should initiate communication to discuss the case’s intricacies. This includes sharing key timelines, procedural requirements, and relevant evidence.
    • Joint Strategy Meetings: Regular meetings to discuss case updates and strategize are crucial. Given the fast-paced and deadline-driven nature of legal cases, these meetings ensure everyone is on the same page.
    • Documentation Sharing: Each attorney will likely amass a unique set of documents relevant to their specific case. Sharing these records ensures that critical evidence is not overlooked and can be appropriately utilized across the different claims.
    • Review of Settlement Terms: Before any settlements are accepted, especially in PI or workers’ compensation cases, they should be reviewed collectively to consider any offsets that might reduce LTD benefits.
    • Client Consultation: It is important that the client is kept in the loop and approves of any coordinated strategies or decisions that will affect multiple aspects of their case.

Ethical Considerations in Collaboration

While collaboration among attorneys is often advantageous, ethical considerations must be kept in mind:

    • Confidentiality: Client information should only be shared among attorneys with the explicit consent of the client. Privacy is paramount, especially when sensitive medical or financial data is involved.
    • Conflict of Interest: Attorneys must ensure that there are no conflicts of interest when collaborating. This may include discussing potential future claims that could pit the attorneys against each other, or that would not be in the best interest of the client.
    • Fee Sharing and Financial Arrangements: Any financial arrangements, including how fees will be shared, should be made transparent to the client. All parties must agree on how costs will be allocated for joint efforts.
    • Informed Consent: The client must be made aware of all collaborative activities, potential risks, and benefits. Written consent should be obtained to ensure that they agree to the attorneys’ collaborative approach.

In conclusion, effective collaboration among attorneys specializing in different areas can lead to more beneficial outcomes for clients with TBI claims. However, this should be done cautiously, adhering to ethical guidelines, to maintain the integrity of each attorney’s role and the overall benefit to the client.


Case Studies

The journey to securing LTD benefits for a traumatic brain injury (“TBI”) is often complex and comes with many challenges. Real-world case studies can provide invaluable insights into the pitfalls to avoid and strategies to adopt. Here are a few examples to help you understand how others have successfully navigated this intricate process.


Case Study 1: Failure to Meet Deadlines

Challenge: A claimant suffering from a TBI due to a car accident missed the initial deadline to file an LTD claim because of cognitive impairments related to the injury.

Solution: Upon realizing the mistake, the claimant immediately sought the help of an LTD attorney. The attorney was able to gather comprehensive medical evidence, including neuropsychological assessments and advanced neuroimaging, to demonstrate the severity of the cognitive impairments that led to the missed deadline.

Outcome: After an appeal, the insurance company considered the late filing as excusable due to the exceptional medical circumstances and approved the LTD benefits.


Case Study 2: Misclassification of TBI

Challenge: An insurance company attempted to classify a claimant’s TBI under mental illness limitations, which would significantly restrict the duration of benefits.

Solution: The claimant’s legal team collaborated with healthcare providers to compile robust medical and vocational evidence, including vestibular evaluations that clearly indicated the TBI’s physical origins and long-term impact.

Outcome: The insurance company reversed its original decision, classifying the TBI appropriately and granting the claimant the full extent of their benefits.


Case Study 3: Complexity of Multiple Claims

Challenge: A claimant with a work-related TBI had overlapping personal injury, workers’ compensation, and LTD claims. Each legal framework had its unique requirements and deadlines.

Solution: Lawyers from all three specialties collaborated from the start, sharing documentation, timelines, and strategies. They also held joint strategy meetings to ensure cohesive representation.

Outcome: All three claims were successfully resolved, maximizing the claimant’s total benefits without negatively impacting any individual claim.

These case studies underline the importance of timely actions, robust evidence, and strategic legal collaboration. Each case is unique, but understanding how others have navigated similar challenges can equip you with the knowledge to handle your own TBI LTD claim more effectively.


If you or someone you know is facing the challenges of navigating a Long Term Disability claim due to a Traumatic Brain Injury, going through it alone is not the only option. Our team of dedicated professionals is here to assist every step of the way.

At Riemer Hess, our experienced ERISA attorneys understand the disability insurance claim process and what your insurer will look for, whether you’re filing a claimappealing a wrongful denial, or looking to litigate with your insurer.  We have assisted numerous clients with a dysautonomia long term disability claim.  To arrange for a consultation with lawyers at Riemer Hess, call us at 212-297-0700 or click the button below to schedule an exploratory call.

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