June 16, 2013

The Pitfalls of Handling Your Own ERISA Appeal

by Kantor & Kantor LLP

The Kantor & Kantor website contains useful information to guide an insured if he or she elects to handle their own ERISA appeal. In some circumstances, this may be appropriate. However, we frequently see problems created by insureds who have handled their own appeals. These problems are usually due to the fact that an insured is unfamiliar with the claim review process. The errors we frequently see are:

• The insured is under the misconception that a request for a “written explanation” or “a narrative” from the insurer will be satisfied with a detailed letter from the insured describing his disability. Although an insurer may request an “explanation” or “a narrative,” it rarely gives any weight to statements by the insured. Rather it relies upon medical or vocational evidence by experts, such as physicians and vocational counselors.

• The insured believes that an insurer’s designated “independent medical examination” is truly “independent.” Insurers routinely hire physicians who will support the financial interests of the insurers. These physicians obtain repeat business from the insurers and are motivated to support the entity who is paying for their report. In reality, the examinations are far from “independent.”

• There is misinformation in the attending physician’s records. Often clients will downplay their true medical condition when describing their ailments to their attending physicians. We often see notes in medical records indicating that the insured is “about the same” or “doing better.” These notes do not give the full picture of the ailments which are currently being experienced and may give the false impression that one has improved to the point of being able to return to work. When a physician inquires how the patient is doing, the better response is to accurately describe all current symptoms. The patient should also give a full description of any medication side effects he or she is experiencing. Without a full description of the problems, the necessary information will not be contained in the attending physician’s records.

• The insured does not supply adequate evidence of the true job duties he or she was required to perform. Often, job descriptions are vague or outdated. Merely advising the insurer of the job requirements is not sufficient. Rather, the information should come from the employer or a vocational expert.

Although one’s attending physician and/or employer believes that a patient/employee is truly disabled, they may not have the time to advocate on the insured’s behalf. If this is the case, we strongly recommend that the insured retain an attorney to ensure that supportive, credible evidence is submitted with the appeal. If you find that you need assistance with your ERISA appeal, please call us for a no-cost consultation at (800) 446-7529 or visit www.kantorlaw.net.