Articles Tagged with disability

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 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.

When you start a new job that provides disability insurance, or accidental death and dismemberment insurance, most policies include language that states you will not have coverage for claims you make in the first 12 months if the claim is for an injury or illness that is a “pre-existing condition.” But what is a pre-existing condition, and how will insurance companies determine if you have one?

A pre-existing condition is generally defined as any medical condition for which you received treatment, care, advice, or a prescription from a medical professional in the 90 days before you started your new job. The precise language will differ from policy to policy, but that is the general idea. For some medical conditions, the application will be obvious. If you were in treatment for breast cancer in the three months before you started your new job, started a new job believing you were in remission, and then 8 months later found out that your cancer had returned, that would be a pre-existing condition and you would not have coverage. If you were in a car accident before you started a new job and treated with a chiropractor or in physical therapy for injuries, and eventually could not work because of those injuries and so went on leave within the first year of work, that would be a pre-existing condition. It’s also reasonably clear that if you treated with a doctor for a broken leg, or with a psychiatrist for anxiety before starting your new job and six months later you were hit by a car and went out on disability for internal injuries, your prior medical care would not be a pre-existing condition that would bar coverage for the accident.

There are other situations that are not so clear cut. If you were treating for back problems due to a slipped disc prior to starting work, and then were in a car accident six months into your new job and further injured your back, will coverage for that injury be barred by the pre-existing condition limitation? Your insurance company will almost surely argue that there is no coverage because the injury was a pre-existing condition. What if you had diabetes, and after a car accident lost a leg, in part because of complications related to your diabetes? Or what if you had been fully released to work after a prior injury and were not treating for it, but were titrating down on your pain medication during the 90-day period before you started work, and then your injury flared and you needed to go on disability?

Unum is one of the biggest disability and life insurers in the United States, owning subsidiaries including Provident Life and Accident Insurance Company and The Paul Revere Life Insurance Company. Unum generates billions of dollars in revenue and has boasted high rates of growth over the past few decades. Unum has also built a bad reputation for unfair handling of disability benefits claims over the years. Their aggressive and unfair tactics to avoid paying benefits to insured individuals resulted in numerous lawsuits and class actions for insurance bad faith practices, with trial losses totaling well over $100 million.

On top of individual lawsuits and class actions, in the early 2000’s, insurance regulators undertook a multistate market conduct examination to investigate reports of wrongful practices related to delaying and denying legitimate disability insurance claims.  As a result, Unum entered into a multi-state settlement agreement in 2004 in which Unum agreed to review denied claims, implement new claims handling procedures, and pay a $15 million civil penalty. On top of the multi-state settlement agreement, California regulators undertook their own investigation and Unum’s California settlement agreement entailed an additional $8 million penalty as well as changes to policy provisions and claims handling procedures.

Some of the most striking problems with Unum’s handling of disability claims that insurance regulators identified included the following:

Most insurance companies unveiled national advertising campaigns in March 2020, promising to “pause” all policy cancellations or expirations for at least a month due to non-payment of premiums. Many continued this policy, stating that insureds simply had to ask to have their insurance payment plan extended during COVID-19.

Insurance companies did not do this out of the goodness of their hearts. In most states, the state insurance commissioner issued directives asking or requiring insurance companies to do exactly this. The federal government similarly issued regulations for policies governed by ERISA, extending the deadlines for appeals until after the pandemic ends.

Despite the state and federal mandates, and their own advertising, insurers have not all followed these requirements.  Many insurance companies did in fact still cancel or allow policies to lapse in the first month of the pandemic.  Many more put the onus on their insureds to reach out and request help, despite promises that all such extensions would be “automatic.”  Here is a summary of the positions taken by some of the major insurance companies:

Here at Kantor & Kantor we constantly find ourselves working closely with SSDI attorneys on behalf of our clients. Even more often, the evidence we secure on behalf of our clients during their LTD disputes can be utilized by your clients to support their SSDI claim as well. Here are some thoughts on our clients’ intersection between LTD and SSDI.

If we have a mutual client, use us as a resource to fight the substantive disability claim.

We can promptly provide copies of critical case documents, including testing or expert reports we have acquired in support of our client’s LTD fight. Our evidence saying a claimant is completely unable to work in any occupation on even a part time basis should be similarly useful for your SSDI case.

Kantor & Kantor has established a regular, live, and interactive Zoom conversation to discuss generally and answer questions from the public about long-term disability, health insurance, pensions, life insurance, casualty (homeowners), and more.  BenefitsChat will be live on Wednesday evenings from 5:00 pm – 6:30 pm Pacific Time.

Host Andrew Kantor, his fellow Kantor & Kantor attorneys, and select guests will explain and discuss everything from “big picture” concepts, such as the distinctions between different ways of obtaining insurance, to case-specific concepts designed to help individuals protect their rights.

While there is always a demand for legal information, current events have created an unparalleled need for as many real, live, helping hands as are available to be lent—even if the hand can only be safely lent via webcam. This forum will give people the chance not only to learn from our attorneys and each other; but to do so within the safety and comfort of a like-minded and supportive group of individuals and their families.

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