Articles Posted in LongTerm Disability (LTD) Insurance

Here at Kantor & Kantor, we like to refresh and give updates to certain parts of the process we use to help individuals. We feel that the more people understand their insurance benefits, the better they will be able to fight when benefits are denied. Long-term disability (LTD) insurance is a large part of this process, so we will explain the basics here.

Long-term disability insurance is an insurance policy that protects an employee from loss of income in the event that he or she is unable to work due to illness, injury, or accident for a long period of time.

LTD can provide benefits for work-related accidents or injuries that are covered by Workers’ Compensation insurance, but there usually will be an offset, where the LTD benefit is reduced dollar-for-dollar by the amount of Workers’ Compensation payment. LTD also does cover an employee in the event of a personal accident such as a car accident or a fall.

When the disability insurance attorneys at Kantor & Kantor, LLP see what is happening with those whose COVID-19 symptoms are continuing for more than a month, they know that there is a good chance that long-term disability claims will be denied. Because of this, we have developed the COVID Longhaulers Legal Resource Center.

In fact, the symptoms that Longhaulers are experiencing match many of the same disabling symptoms those living with autoimmune diseases such as ME/CFS, Dysautonomia, POTS, and more.

Since the symptoms dovetail, we are confident that the inevitable problems and denials with the long-term disability insurance providers will follow suit.

The Lupus Foundation of America estimates that 1.5 million Americans, and at least five million people worldwide, have a form of lupus. According to the Lupus Foundation of America most lupus sufferers are misdiagnosed or can go undiagnosed for years. The goal of Lupus Awareness Month is to inform practitioners, patients, care givers, and the public about how best to diagnose, care for, and live with lupus.

What is Lupus?

Lupus is a chronic disease that can cause inflammation and pain in any part of your body. Lupus is a type of autoimmune disease, which means the body’s immune attacks healthy tissue instead.

The term “long haulers” has started being used to describe people who have not fully recovered from COVID-19 weeks or even months after first experiencing symptoms. Some long haulers experience continuous symptoms for weeks or months, while others feel better for weeks, then relapse with old or new symptoms. The most common lingering symptoms are fatigue, body aches, shortness of breath, difficulty concentrating, inability to exercise, headache, and difficulty sleeping.

A new Northwestern Medicine study published this week in the Annals of Clinical and Translational Neurology analyzed 100 non-hospitalized COVID-19 long haulers and discovered 85% of patients experienced four or more neurologic symptoms which impacted their quality of life, and in some patients, their cognitive abilities. The study included 100 non-hospitalized COVID-19 long haulers from 21 different states who were seen in-person or via telehealth from May to November 2020.

The long haulers suffered persistent neurological issues, including brain fog, headaches, numbness/ tingling, disorders of taste and smell, and various myalgias. Additionally, 85% reported experiencing chronic fatigue. Among the long haulers who were in the study 47% also reported struggling with anxiety, stress, depression, and sadness. As a result, many patients experienced decreased quality of life and about half the patients in the study missed more than 10 days of work.

One of the most crucial pieces of evidence in supporting a long term disability claim is the opinion of the claimant’s treating physician that he or she is disabled.

Many physicians are more than happy to assist their patients with forms required by the LTD provider and in some cases, narrative accounts of their patient’s disabling condition.

Sometimes, though, even with the support of your physician, problems can still arise. Often, this is because of the office visit notes your physician makes with each of your visits. Phrases such as, “doing well,” “symptoms improved,” “responding well to medication,” while meant as shorthand by the doctor that her treatment plan is working, are often used by the insurance company to conclude that you are no longer disabled.

Autoimmune disease is a broad category of related diseases in which a person’s immune system mistakenly attacks the tissues and organs it was designed to protect. Normally, the body’s immune system protects it by responding to invading microorganisms, such as bacteria and viruses. The immune system produces antibodies, which are special proteins that recognize and destroy the invaders. Autoimmune diseases occur when these autoantibodies attack the body’s own cells, tissues, and organs.

Autoimmune Facts:

  • There are more than 100 autoimmune diseases.

One of the most crucial pieces of evidence in supporting a long term disability (LTD) claim is the opinion of the claimant’s treating physician that he or she is disabled.

Many physicians are more than happy to assist their patients with forms required by the LTD provider and in some cases, narrative accounts of their patient’s disabling condition. Sometimes, though, the doctor is unable or unwilling to assist. There are a variety of reasons for this: lack of time, lack of compensation, misunderstanding of the level of involvement required by the doctor, employer/hospital rules preventing them, and in some cases, a disbelief that their patient is actually disabled.

If you have a disabling condition and you are making an LTD claim, or you are receiving benefits, your doctor’s participation in the process is essential. Without a doctor’s support, in most cases, your claim is finished. If your doctor has notified you that he or she will not be able to assist you with your claim, it is important to ask him or her to tell you the reason for their decision. If it is anything other than lack of belief that you are disabled, often, further information can change their minds. The offer of additional compensation for their time is a big help. Explaining that they will not have to do anything more than the forms or a letter – that they will not have to testify in court – goes a long way in changing minds.

If you have a disability insurance policy, you probably assume that if you’re unable to perform the duties of your job because of your medical condition, you’re entitled to benefits under your policy.

Not so fast! You may be surprised to learn that most disability policies don’t insure you from being unable to perform the duties of your job – instead, they insure you from being unable to perform the duties of your occupation.

What’s the difference? Well, as insurers will tell you, they are concerned about insuring people when they don’t know what those people are doing. There are too many jobs with individual specific duties performed in a variety of idiosyncratic ways for insurers to keep track of. As a result, they only insure the “type” of job you have, i.e., the job as it is typically performed in the national economy.

If an ERISA appeal for long term disability benefits is denied and the claimant pursues litigation, the appeal is likely to be mediated before going to trial with a judge. Indeed, most ERISA cases settle in mediation.

Here are some fundamental points to understand about mediation of long-term disability cases:

  • Mediation discussions are confidential. What you say in mediation cannot be used against you in court.

If a claim for ERISA disability benefits is denied or terminated, the claimant’s next recourse is to submit an administrative appeal to the insurance company. An ERISA long-term disability claim cannot be taken to court until the administrative appeals process is first exhausted. If the appeal is denied and the case proceeds to litigation, ERISA constrains the scope of evidence that is heard at trial and also limits the available remedies. (For this reason, ERISA is favorable to the insurance companies since it does not contain strong disincentives for denying meritorious claims).

It is important to understand that, with rare exceptions, the evidence submitted on appeal is the only evidence that will be considered in litigation—in other words, once the insurance company makes a final decision on an appeal, the file for litigation becomes closed. New supporting evidence does not get added during litigation and no witnesses are called to the stand to testify. The judge makes a determination based on the legal briefs submitted by the attorneys on both sides and a hearing at which the attorneys present arguments and answer any questions the judge may have. This makes ERISA litigation is a very particular type of litigation  governed by certain rules and limitations which make the process quite different from many other types of litigation such as personal injury.

For this reason, thoughtful preparation and submission of all relevant evidence for the administrative appeal is absolutely imperative. Appealing the denial of a disability claim is not just a matter of refuting the insurance companies’ reasoning for the decision or pointing out overlooked facts. Rather, it is the one opportunity to assemble the strongest possible body of evidence that can be presented in court if the appeal is denied.

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