Resist the Urge to Submit a Quick Long Term Disability (LTD) Appeal – ERISA or Insurance Bad Faith

One of the most common mistakes we see with long term disability (“LTD”)  denials (ERISA and non-ERISA/bad faith) is claimants rushing to submit their appeal. The desire to move quickly is understandable:

  • You have no money coming in;
  • You are angry at the insurance company and want to give them a piece of your mind;
  • You feel like you submitted all the medical evidence at the claim submission stage and there’s nothing else you can submit;
  • Your doctor says there’s not much more he/she can do or say.

Despite these and other feelings, and assuming you still act within the applicable time-frame, you must resist the urge to just get your appeal in ASAP for several reasons.

First, under ERISA, the administrative record (also known as the claim file) is essentially closed once your appeals have been exhausted. Basically, once the insurance company makes their final decision to deny, if you file a lawsuit and go to court, the only things the judge will likely agree to look at are the documents that were in the administrative record at the time the insurance company made its decision. If there are additional medical records that weren’t submitted or you failed to get formal testing to corroborate what you and your doctor’s are saying, you probably won’t be permitted to introduce that evidence later on in the process.

Second, you have a right to request the entirety of the administrative record after the initial claim denial. DO THIS BEFORE DOING ANYTHING ELSE!!!! The claim file will include everything the insurance company has involving your claim: all medical records, correspondence, internal medical reviews, external medical reviews, vocational reviews, surveillance reports, surveillance videos, background investigations, etc. You wouldn’t try to put together a puzzle without taking out all the pieces first, would you? So why try to solve the puzzle of the insurer’s denial without seeing all the pieces that went into it?

Third, you want to make sure you thoroughly review the LTD claim file before doing anything else. Sticking with the puzzle metaphor, you need to know what pieces are missing so you can fill in the gaps.  You will likely discover that the insurer is missing records from one or more of your doctors, is misquoting your doctors in the denial letter, is misstating the duties of your occupation, is hiding information that works against them, or any number of other errors that regularly pop up in LTD denials.

One of the issues described above just recently came up in a lawsuit we’re handling. Our client suffered two traumatic brain injuries in short succession, and his claim is based on headaches and cognitive deficits resulting from his head injuries. The insurance company denied his claim, he quickly submitted his appeal within a week of the denial including just a few medical records, and the insurance company denied his appeal shortly thereafter based on a medical review by an outside paid consultant.

Once we took over his case and obtained the claim file, we discovered that prior to the initial denial there had already been a medical review by a different outside consultant. There was, of course, no mention of this prior consultant’s review in either the initial denial letter or the appeal denial letter. As I’m sure you can guess, the first medical consultant concluded that the insurance company should pay the LTD claim. Instead of heeding his advice, they denied the claim and then hired a different doctor to do the appeal review.

Had my client slowed down and requested his claim file after the initial denial, he would have discovered that there was already a doctor on the other side supporting his inability to work. He could have thrown that back in the face of the insurance company in his appeal, and would have stood a much better chance at overturning his denial without needing to hire Kantor & Kantor.  This is just one example of something you might find in your claim file that can greatly improve your chances at winning your appeal.

Insurance company claim files can be hundreds or even thousands of pages long, so give yourself time to request, receive (usually 30 days) and review the file.  If you feel overwhelmed and need some advice, please contact Kantor & Kantor for a free consultation, 877-783-8686.


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