Articles Posted in LongTerm Disability (LTD) Insurance

In honor of MS Awareness Week, we would like to devote this blog to successfully proving and establishing a disability claim based on Multiple Sclerosis.  We find that most of our clients who have MS have struggled to remain at work, but then reach a point where they can no longer continue. In such circumstances, the carrier may ask “what changed?”  It is helpful to show that the condition deteriorated even though the client struggled to remain at work. There are steps you can take to help document the progression of the disease:

  1. Make sure that your doctor’s records accurately describe your symptoms.  Many feel that they do not have to describe their fatigue, migraines, muscle weakness, etc. on each visit to their physician(s) because the symptoms are just naturally a part of the disease. This is true, but your medical records must contain a description of the symptoms you are experiencing.  If the medical records do not contain an accurate description, a subsequent letter from your physician may be perceived as inconsistent with the medical records.
  2. If you are experiencing “adverse” side effects from your medication, this should also be reported to your physician. Again, many do not report unpleasant side effects because they are to be expected. However, the side effects and their disabling potential should be accurately described in the medical records.

While we certainly do not recommend it, you may choose to handle your own short term disability or long term disability claim. A side note: we strongly recommend you do not handle an STD or an LTD appeal without legal representation.

If you decide to make a disability claim on your own, there are a few things you should keep in mind when dealing with an insurance company: (1) insurance companies are for-profit businesses with an eye on profits; (2) everything you provide to them during your claim goes into your claim file; and (3) you cannot rely on an insurance company to obtain documentation to support your claim.

Why are these things so important?

Surveillance is a common tool insurance companies use to gather information about long-term disability claimants. It can feel creepy to know the insurer may scan through your Facebook posts, run a background check on you, or even hire an investigator to follow you. Here are some common types of surveillance used, and advice about surveillance for anyone on disability.

Three Common Types of Surveillance

An insurance company may use different kinds of surveillance depending on how much money it is willing to spend to investigate a claim, what kind of activity it expects to uncover, and the type of disability.

Most people with long term disability (“LTD”) insurance obtain that coverage through their employer. Thus, most of us are stuck with whatever insurance company and policy our employer chooses to purchase. And while you might think to yourself, “they’re all the same, so who cares which insurance company my employer decides to go with,” nothing could be further from the truth.

LTD insurance policies vary widely depending on which insurance company is issuing the policy. Some companies offer good, comprehensive coverage that treats every type of disability more or less the same. Under these policies, regardless of whether your disability is due to physical or psychiatric reasons, you will be paid LTD benefits as long as you remain disabled under the terms of the policy.

Most LTD policies, however, will differentiate between physical disabilities and psychiatric disabilities. If your disability is “due to” a mental and nervous condition, or worse yet simply “caused or contributed to by” a mental and nervous condition, most insurers will only pay you LTD benefits for a maximum of 2 years (versus paying until age 65 for a physical disability). This distinction provides LTD insurance companies with one of their favorite tactics: They will cut off benefits for people under the 2 year limitation by arguing that while you might have some physical problems, the real reason you can’t work is because you’re suffering from depression/stress/anxiety.

Long before I became a lawyer, all the way back in childhood, I hated when people spoke in absolutes. For those who don’t know, speaking in absolutes is using all or nothing terms like: always/never; best/worst; everybody/nobody; can’t; nothing/everything; all the time; all/nothing; constantly; definitely; etc. I dislike absolutes because while on the surface they appear to make a message stronger (“this always happens to me” or “my mom’s cooking is the best”), they actually do the opposite by weakening your credibility.

Does anything happen “always”?

Think about it. Does anything happen “always”?  Can you definitively say there’s no one on the planet who cooks better than your mom? Of course not! But in addition to saying something that you can’t prove, you have also opened yourself up to allow people to be able to prove – very easily I might add – that you are a liar. And once they can prove you lied about that one thing, they can then turn around and use that lie to cast doubt on everything else you say.

As you probably know, insurance companies are masters of fine print. You may think you have coverage for a condition or injury under your insurance, but when the worst happens, you may find out that you weren’t actually covered after all. Or, you may be covered, but you didn’t have as much coverage as you thought you did.

You can’t always protect yourselves from these gotchas. Many of us have insurance through our employers, and we don’t have power to negotiate the terms of those policies.

However, you can still avoid nasty surprises by reading the fine print in advance. Medical insurance is the type of insurance most people are familiar with, and while you don’t need to know your entire insurance policy by heart, you should know the basics of calculating your benefits – i.e., what your deductible, coinsurance, copay, and out-of-pocket maximums are.

Bipolar Disorder, a brain based disorder, causes unusual shifts in mood, energy, activity levels, as well as the ability to carry out day-to-day tasks (National Institute of Mental Health). Bipolar Disorder is a serious mental illness that affects a great many Americans every year. Kantor & Kantor has worked with many clients who suffer with Bipolar Disorder, and such clients are often affected in a way that is life altering and debilitating. Unfortunately, it is not uncommon for these clients to face many obstacles and complications when making a claim for long term disability benefits (LTD) for Bipolar Disorder.

Why are these Long Term Disability claims so difficult?

The first issue that can arise is difficulty in proving that you are disabled (under the terms of your long term disability policy’s definition of disabled).  While you and your doctor both know that you are no longer able to work, meeting a policy definition of disability takes more than just that knowledge.  Unlike a back condition or an autoimmune disease, which can be shown through objective measures, objectively establishing that you have disabling Bipolar Disorder can be tricky. Typically, the diagnosis is made by a therapeutic psychologist. The condition is then treated medically by a prescribing psychiatrist, as well as through therapy with a clinical psychologist.  Thus, there really is no lab test or other objective measure to prove you have the condition.  Your treating providers’ diagnosis, based on their examination and treatment of you, is the objective proof – but you must have their help in getting that information to your LTD carrier.

At the time of the denial, it is customary for claim representatives to tell insureds that they will have an opportunity to appeal the denial and that the appeal will be a “fresh look” at the evidence in the file.  Recently, we here at Kantor & Kantor have seen a new trend with some insurance carriers when there has been an initial denial of benefits.  Some carriers are now providing insureds with a one or two page “appeal form” to be completed by the insured for the appeal.  This is misleading and may actually prejudice the insured when completing the appeal.

As discussed in other posts on this website, the appeal to the insurance company is perhaps the most important part of a claim prior filing a lawsuit.  It is the only opportunity for an insured to ensure that all of the evidence supporting his or her claim is in the insurer’s claim file.  As such, an insured needs to include all medical records and testing documenting his or her impairments. If it is not included within the insurer’s claim file at the time of the final denial of the claim, it is very difficult, if not impossible to persuade a trial judge to consider the evidence.   Thus, the mere completion of an appeal form, without the additional documentation, may cause an insured to believe that a few sentences, “explaining” the disability, may cause an insurance company to overturn its decision.  In truth, it will not.   The insurance company will deny the claim on appeal and its claim file will be incomplete, without the evidence that should be included to prove disability.

The insured should not be misled into believing that completion of a simple form will be sufficient to overturn the decision on appeal. The insurer’s claim file should be obtained to review the evidence in support of the denial and the denial letter should be carefully scrutinized. Once this is done, an appeal should be thoroughly prepared to rebut the insurer’s evidence.

Posted by: Beth A. Davis

If you have a long term disability claim through a policy provided by your employer, ERISA most likely governs that claim. As such, if your claim is denied and you have to pursue your benefits, there are very specific rules and regulations about how – and sometimes whether – you will be able to provide evidence of your disability to the insurer.  Also, the quality of the evidence matters very much.  This blog will give you some pointers on what to gather before you hire an ERISA attorney to assist you with your appeal – and you should definitely hire an ERISA attorney to help you because the appeal is your only opportunity to provide the insurer with the necessary evidence to properly support your claim.

  • Request your claim file – if your claim has been denied, you should request a complete copy of your claim file from your insurer. This will help the attorneys to ascertain whether you have a case they can assist you with and what evidence you will need to support your claim;

Posted by:  Andrew M. Kantor

Happy 2019! In honor of the New Year, I wanted to take some time to discuss some of the newer developments in the world of Disability Insurance.

Advancements in the Fight to Acknowledge ME/CFS

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