Articles Posted in LongTerm Disability (LTD) Insurance

The Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., was enacted to provide minimum standards for voluntarily established plans by employers in the private industry for the benefit of their employees. Despite its name, ERISA also applies to disability benefits an employee may be entitled to if s/he becomes unable to work due to a disability, whether or not it was work-related.

Social Security Disability Insurance (“SSDI”) benefits, in contrast, is a federal government program, and is available to most people, with certain exceptions, who have worked in any industry and contributed to the Social Security trust fund via the FICA tax.

Most ERISA plans encourage, or even require, that an employee seeking long term disability (“LTD”) benefits also apply for SSDI because any amount paid by Social Security is an offset for the insurance company, making its payments substantially less. However, being awarded SSDI benefits does not mean that the claimant will also qualify for LTD benefits because insurance companies are not bound by the Social Security Administration’s (“SSA”) determinations. Similarly, of course, the decision denying SSDI does not mean that the claimant will not qualify for LTD benefits under an ERISA plan.  But, an ERISA plan administrator is likely to use a SSDI denial as evidence that a claimant does not meet the ERISA plan’s definition of disability.

The correct response is, “maybe, or maybe not, depending on the facts, and the state in which you reside.”

Insurance policies very often have time limits on the submission of a claim for benefits. In some states, those deadlines are VERY strictly construed, and once the deadline has passed, it does become “too late” to make a claim.

However, more than half of the states apply some form of an insurance rule called the “notice prejudice” doctrine.  Simply put, even if an insurance policy imposes a time limit for the submission of the claim, if certain rules are met, a claim can be submitted after the time limit if the late notice does not “prejudice” the insurance company’s ability to investigate the claim.  However, that is just a basic summary of the rule.  In the states that apply some form of the notice prejudice doctrine, its application differs from state to state.  In some states, the insured making the late claim must demonstrate a “good reason” for making a late claim.  In others, the burden falls on the insured to prove that no prejudice would be suffered by the insurance company because of the late claim submission.

Many people submit short term disability and long term disability claims on their own, without consulting or engaging an attorney to assist them. We think you should consider hiring an attorney to assist you in this endeavor. Ensuring that you have all of the necessary information to get your claim approved with the first submission can be a daunting task. You are already not feeling well because you are disabled. Moreover, you do not know the ins and outs of the disability insurance world and we attorneys do.

There are several nuances to this process.  Disability attorneys know what documents to help you gather including not only your medical records but additional evidence in support of your claim such as independent medical evaluations, functional capacity evaluations and other medical exams. We also know how to help you get the necessary vocational evidence to support your claim that you can no longer perform the duties of your own occupation.

If you submit your claim on your own and it is denied, you will have to submit an administrative appeal in order to preserve your right to benefits. You will likely come to us at this point and we will advise you on what was missing from your initial claim that resulted in the denial. If you hire an attorney at the initial claim stage, while it is not a guarantee that benefits will be approved, if they are approved, it is certainly a time saver for you.

When you become ill with what may turn out to be a disabling condition, you are not likely thinking about whether the things you say to your physician might impact a short or long term disability claim, but you should be. Unfortunately, insurance companies use comments by claimants and their physicians found in the claimant’s medical records to discredit their claims. They can also be used to apply provisions in the policy that limit the duration of benefits. In some cases, depending on the medical facility where you treat, even your email and telephonic communications are recorded and placed in your medical records. These can be extremely detrimental to your disability claim.

Here are some examples from real claims: A man went to his physician and was diagnosed with Parkinson’s Disease. His symptoms were already pretty advanced and his doctor determined he should stop working. We helped him make a claim for disability benefits. One of the symptoms of PD is depression. Our client had mentioned to his neurologist on many occasions that he was suddenly feeling very depressed. Even though his physician attributed his depression to his PD and even though he had never before had depression, his LTD carrier tried to apply the policy’s mental/nervous limitation which would have limited his benefits to only 24 months, claiming he was disabled by depression, not PD.

In another case, a client who was already receiving long term disability benefits whose claim had been terminated came to our firm for assistance. We told him he would need assistance from his physician for his appeal of the denial. We explained the points the doctor’s letter would need to address and the client listed those points in an email to his physician. Because the client treats at Kaiser Permanente, that email was included in his medical records. When his insurer requested copied of his medical records, his insurer was able to obtain communications between the client and his attorney all because he sent an email to his doctor asking for help.

Kantor & Kantor won a notable victory against the Life Insurance Company of North America (also known as “LINA” or “Cigna”) in Elliott v. Life Insurance Company of North America, Inc., No. 16-CV-01348-MMC, 2019 WL 2970843 (N.D. Cal. July 9, 2019), a case in the San Francisco Bay Area involving a denial of long-term disability benefits to the plaintiff who is disabled by trigeminal neuralgia.

The plaintiff, Elliott had to stop working in his position as Vice President of a brokerage firm due to symptoms from trigeminal neuralgia, a chronic pain condition affecting the trigeminal nerve, which is a cranial nerve responsible for sensation and certain motor functions in the face. Elliott was experiencing symptoms including shooting facial and head pain on a daily basis, migraines, difficulty talking, as well as medication side effects including sedation and cognitive slowing.

LINA had approved Elliott’s initial claim for short-term-disability, but denied his claim for long-term disability benefits and upheld its denial on appeal, stating that there was a lack of objective evidence to support his diagnosis. After the Social Security Administration approved Elliott’s social security benefits claim, finding him disabled, LINA had another opportunity to reconsider its decision deny Elliott’s claim but declined to do so.

There is almost nothing more important to a successful disability claim than a supportive physician. At every point of your claim, you will need the help of your doctor. At the initial claim, your doctor will be asked to complete a form certifying that you are disabled and providing detailed information about the symptoms you have that prevent you from performing the duties of your occupation. She will also be asked to provide your restrictions and limitations that prevent you from working.

If you have been awarded disability benefits and you are “on claim,” your insurance company will ask your doctor for information on your condition as it periodically investigates whether you remain disabled under the terms of your policy.

You will need a doctor who is willing to fill out forms sent by the insurance company. More importantly, you will need a doctor who understands that if she is too quick with these forms and does not pay attention, noting that you “can sit frequently” when she means you are fine to sit at home on your sofa and does not intend to say you are fine to go back to work can be enough to get your claim denied.

Due to their depth and breadth of knowledge, the attorneys at Kantor & Kantor are frequently asked to speak at seminars, conferences, or give presentations. In June of 2019, partner Brent Dorian Brehm was asked by a national continuing legal education (CLE) provider to speak about long term disability benefits.  The seminar was titled “Mastering Social Security, Long-term Disability & Government Benefits.” Mr. Brehm took the attendees on a journey from the start to the end of a long term disability claim – and everything in between. He also covered relevant differences between disability claims governed by state law and those governed by ERISA.

While we cannot provide you with the actual presentation or the question and answer segment that followed, we can provide Mr. Brehm’s outline. This information is valuable to anyone at any stage in the long term disability claim process. It starts from the beginning – explaining what LTD benefits are. It then goes through tips on making a successful LTD claim. It addresses what needs to be done during the claim stage to avoid litigation – but be ready for it if that must happen. And finally reviews the nuts and bolts of litigating both an ERISA and bad faith disability claim.

What are long term disability benefits?

Kantor & Kantor, LLP is pleased to announce that for the fifth consecutive year (after three years as a Rising Star), Michelle L. Roberts has been selected to the 2019 Northern California Super Lawyers list.  No more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. To top that off, Ms. Roberts was once again named as one of the Top 50 Women and Top 100 Attorneys.

And in the first of what we are confident will be many accolades, Andrew M. Kantor has been selected to the 2019 Southern California Rising Stars list in the Employee Benefits practice area. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Yahoo Finance published an article about how insurers try to prevent individuals from obtaining disability benefits. While the article discusses Canadian insurers, our experience is that the tactics described in that article also happen in the United States.

This blog elaborates on some of the points raised in the article, especially as they relate to ERISA insureds. The Yahoo article observed:

Surveillance is a common tactic. Insurers will hire private investigators to try to catch you in the act of doing something a disabled or injured person couldn’t, like moving a ladder or other heavy objects.

We represent a number of clients who suffer from Rheumatoid Arthritis.  This often misunderstood and “invisible” disease causes extreme pain for its sufferers.  On top of the pain, many also deal with the disbelief of friends, family and employers as to the disabling nature of their illness.

Rheumatoid Arthritis (“RA”) is a chronic disorder in which the body’s immune system attacks joint tissue and causes inflammation that can spread throughout the body.  It can also cause excruciating pain.  Because there are very few visible symptoms during most stages of this disease, its sufferers appear to be fine when in reality, they are in extreme pain.

Another difficult aspect of RA, from a disability standpoint, is that there is no single test for diagnosing the condition. Rather, it is diagnosed by clinical evaluation, lab tests and imaging. This makes meeting your long term disability plan’s definition of disabled more difficult as insurers are often looking for “objective evidence” of disability.

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