Disability and Injury FAQs

Injuries and illnesses that keep from work can cause considerable personal and financial strain. At these times, individuals and families rely on insurance policies to keep them secure. When those benefits are denied, it’s natural to have many concerns and questions. Browse our FAQs to find information and insight from our experienced disability and injury attorneys.
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  • How do I appeal a denial of benefits on my own?

    If you insist on appealing on your own without legal representation, you should follow the steps below:

    • Read the entire denial letter carefully from start to finish. Read it again a couple more times. The insurance company is legally obligated to advise you of the specific reasons it is denying your claim. The carrier must reference the specific policy provision on which the denial is based; describe what additional material or information, if any, is necessary to further evaluate and support your claim; and explain what specific steps you must take to appeal.
    • Next, you should request your free copy of your claim file from the insurance company. Submit your request in writing immediately after the denial order to allow you sufficient time to review its contents before writing your appeal. This claim file should include a copy of your entire disability policy.
    • You must submit your appeal to the insurance company before the specified deadline. You should do so in writing, not by telephone, preferably by certified mail with delivery confirmation. It is critical that you do not miss your deadline. The time to appeal starts immediately after the insurance company denies your claim.
    • Your appeal letter should clearly state that you are appealing the denial of your disability claim. You should specifically state the basis for your appeal and list the additional evidence you are submitting in support of the claim.
    • If you received assistance in filing the appeal, be sure to mention this fact in your letter because insurance companies have been known to point to a well-written appeal letter by the claimant as support for upholding their previous denial. If preparing the appeal letter and putting together the enclosures took you a significant amount of time, be sure to mention that fact as well.

    You Will Need Evidence to Support Your Claim

    Finally, do not assume that the insurance company obtained all of the medical records and other evidence relevant to your case. Carefully review the list of evidence the insurance company considered in rendering its decision and submit (or resubmit) anything that will help prove your disability. “Packing the record” with such evidence is critical. Don’t forget – in most cases, you cannot submit any additional evidence during the lawsuit, no matter how relevant it is to your case. The only thing the court will review is the information that was in the claim file at the time the insurance company made its decision. The appeals process is the perfect opportunity to add as much information as possible to the claim file. Such evidence may be critical to a lawsuit later down the line. For such reasons, I generally recommend that you do not handle your own appeal on your own. Remember- ERISA laws are unfair and difficult for non-attorneys to comprehend. For assistance with your appeal, call 850-308-7833 as soon as possible.

  • I filed my individual disability insurance claim and it has been denied. What do I do now?

    It depends on the language of your disability policy. For that reason alone, you should seek legal advice from an experienced disability insurance attorney. You don’t want to make the mistake of appealing the claim on your own when it may not even be necessary. Some policies require an appeal before litigation and others do not. It is easy for individual policyholders who are not trained to read insurance policies to misread or misunderstand the disability policy. For these reasons, you should seriously consider contacting an experienced attorney before you make a terrible claim or appeal mistake.

  • What is ERISA preemption?

    Courts have determined that all State laws affording remedies to insurance claimants (insureds) for the improper denial of employer-provided insurance benefits do not extend beyond the limited remedies afforded by ERISA. State laws, including “common law” and state statutes, are “preempted” by ERISA. For example, any right under Florida law to recover “extra-contractual” damages for the bad faith breach of an insurance contract is preempted and not available under ERISA regulations.

  • Is my claim governed by ERISA?

    If you are covered by a Group Long Term Disability Policy through your employment, your claim is probably governed by ERISA. As stated throughout the remainder of this website, if you did not obtain disability coverage through your employer or employee group, and instead purchased it as an individual policy from an insurance agent or broker, then there is a good possibility that your disability claim will not be covered by ERISA and your legal options and remedies are more favorable. Moreover, church and governmental (including most City and University) employees are also exempt from ERISA.

    What to Do If You Are Denied Coverage for a Non-ERISA Policy

    If you have church policy, a governmental employee policy, or an individual disability policy purchased directly from an agent or broker then you may not have to appeal the denial before filing a lawsuit. In these instances, you should consult an attorney immediately. You can reach The Ortiz Law Firm at 850-308-7833.

  • What is ERISA and what does it have to do with my LTD claim?

    ERISA stands for the Employee Retirement Income Security Act of 1974. It is a set of federal regulations that apply to insurance policies obtained through your employer, union, or employee organization.

    Congress originally passed ERISA to protect large pension funds (hence the “Retirement Income” part of the name). As you may recall, several decades ago there was very little protection to employees’ pension funds if the employer went bankrupt or if the employer decided to raid the pension funds. Thus, Congress enacted ERISA to protect employees’ retirement pensions. Unfortunately, the insurance companies have used their power and influence to broadly expand the reach of ERISA to other “fringe benefits” and employee benefits. In 1986, the U.S. Supreme Court decided that ERISA governs employer-provided insurance benefits in addition to employer-provided pension plans. Now ERISA applies to most all employee benefits, including health, life and disability insurance – and not just pensions. ERISA “preempts”, or supersedes, state laws that govern employee benefit plans.

    What to Do If You Need to Appeal a Denial Under ERISA

    If you have a disability claim that is subject to ERISA regulations, you must be sure to take all appropriate actions for a timely appeal the denial of your benefits.

    ERISA requires that you “exhaust” all “administrative remedies” before you can file a lawsuit. This means you may have to file several appeals directly with the insurance company before you can take your case to court. In most instances, you must file your appeal within 180 days from the date on your denial letter. However, you should read the last few pages of your denial letter from the insurance company. The insurance company typically tells you: (1) the time limit to file your appeal and (2) the address where you should send the appeal.

    You do not necessarily require an attorney to appeal your denial of benefits, but it may be to your benefit to retain the assistance of an attorney to help you in your claim with the insurance company.

  • Why is it so important to determine whether my LTD coverage is under an individual or group policy?

    The remedies available to an insured under an individual disability policy are vastly different than those under a group policy. If the insurance coverage is under a group policy provided by the insured’s employer, the policy is likely governed by ERISA. If the policy is governed by ERISA, then certain state laws that offer consumers protection and remedies for relief are “preempted” by ERISA regulations. In short, if the LTD plan is governed by ERISA, the disability insurance company has no exposure to bad faith damages and thus has no real incentive to pay the claim.

  • Why is my insurance company delaying payment on my claim?

    My insurance company seems to be engaging in delay tactics. They keep asking for the same information over and over, they say they are still processing my records, and they still have not made a decision on my claim. Now they tell me they still require additional information. Why are they doing this, and are they allowed to do this?

    As for whether they are allowed to engage in delay tactics, the answer is yes. ERISA rules and regulations allow for insurance companies to invoke automatic extensions of time in which to make a decision. All the insurance company has to say is that they don’t yet have all the information they need.

    How Do Delays Benefit the Insurance Company?

    There are several answers to the first part of this question. First, insurance companies do not like to pay out on claims. It hurts their financial bottom line. The more premium money they keep, the better the insurance companies look to their investors. Second, it is a tactic to “starve you out.” They know you are without the disability insurance income, and they know some claimants return to work—any kind of work—to pay the bills. They also know that many workers who become disabled are too sick and tired to put up a fight, nd that many claimants will simply give up. Don’t give up. Don’t give them the satisfaction.

  • How do I go about filing a disability claim?

    How you file a disability claim depends on the type of plan you have, as follows:

    • If your policy is part of a group plan, you should contact your human resources manager to obtain a copy of your summary plan description and a disability claim application.
    • If you purchased an individual disability policy, you should contact your broker or insurance agent for an application.

    Under either scenario, you can always obtain the necessary paperwork directly from the insurance company.

    You May Need Help to Complete the Application

    You will find that the application is very long and has numerous forms that must be filled out. The instructions can often be confusing to someone who is going through this process for the first time. Keep in mind that one wrong answer could mean that your claim will be denied. You should seriously consider seeking assistance from an experienced attorney in applying for your disability benefits.

  • What is long-term disability insurance?

    Group policies covered by ERISA and private individual disability policies are designed to protect your income in the event that you are unable to work due to sickness, injury or an accident. Usually these policies pay approximately 60% of your earnings. There is also usually built in elimination or waiting period where the benefits are not payable until a certain period after you stop working, usually after you’ve been unable to work for 90 or 180 days. A separate insurance policy for Short Term Disability benefits is typically used to pay disability benefits until Long Term Disability benefits kick in.

    Why You Should Consider Long-Term Disability Insurance

    The United States Census Bureau has indicated that you have a 1 in 5 chance of becoming disabled before retirement age. In 1997, the Census Bureau issued the results of a study showing that more than a 152,000,000 people between the ages of 21 and 64 (which is a prime working age for most Americans) have some form of disability. As such, this is a particular area of concern—not only for employees—but also for self-employed men and women who should seriously consider having a long-term disability policy.

  • What is your Residual Functional Capacity, or RFC?

    In order to know whether you can do your job (or any other work in the economy), the Long Term Disability (LTD) insurance company needs to know what you are still able to do (your “functional capacity”), after considering the effects of your disability (“residual”). For example, if you can still sit and type for extended periods of time, but you cannot stand or walk more than two hours total in an eight hour day, your residual functional capacity is such that you may be able to perform sedentary work but not light, medium or heavy duty work.

    What Is Your Residual Functional Capacity (RFC)?

    To learn what your residual capabilities are, the insurance company may ask for you to take an Attending Physician’s Statement (APS) form to your doctor (this form is also known as a Residual Functional Capacity form). If the insurance company claims handler does not believe the APS is sufficient (for example, if the doctor’s responses on the form are totally inconsistent with the medical records in the claim), the adjuster may schedule you an appointment to attend an “Independent Medical Examination” by a doctor hired by the insurance company. This doctor will then perform an RFC (residual functional capacity) assessment for your claim. The examiner will determine what level of exertion you are capable of performing, and what restrictions you have that may limit the jobs you can do. The medical examiner may also review your medical records and your doctor’s notes about your functional abilities and restrictions to come up with your RFC. (For more information about RFC forms, see our article on the RFC form.)

    What Level of Activity Are You Capable Of Performing?

    Physical Impairments

    Your physical RFC will determine whether you can perform sedentary, light, medium or heavy duty work. For example, if your doctor has restricted you to walking and standing no more than two hours total in an eight hour day, your RFC will be for sedentary work. Here is a more detailed breakdown of the various exertional levels:

    • Sedentary work. A sedentary job is one that is primarily sitting, with occasional walking and standing. To perform a sedentary occupation, you usually do not need to lift and carry more than ten pounds at a time, and you may be required to occasionally lift or carry things like files or small tools.
    • Light work. Light work typically requires frequent walking and/or standing, as well as the ability to reach, push and pull with your arms or legs. Light duty jobs typically require the ability to lift and up to 20 pounds occasionally, and up to ten pounds frequently. If one can perform light work, one is generally considered capable of performing sedentary work.
    • Medium work. A medium duty job typically requires one to be able to lift and carry up to 50 pounds at a time, and the ability to frequently lift and/or carry up to 25 pounds. If one can perform medium work, one is generally considered capable of performing light and sedentary work.
    • Heavy work. Heavy duty work typically requires the ability to lift and carry up to 100 pounds at a time, and the ability to frequently lift and/or carry up to 50 pounds. If one can perform heavy work, one is generally considered capable of performing medium, light, or sedentary work.
    • Very heavy work. Very heavy work typically requires the ability to lift and carry objects that weigh more than 100 pounds, and the ability to frequently lift and/or carry 50 pounds or more. If one can perform very heavy work, one is generally considered capable of performing all other levels as well.

    Your RFC will also include any non-exertional restrictions, such as not being able to stoop, use your fingers, or remember instructions.

    Mental Impairments

    Your mental RFC will determine whether you can perform work-related mental activities. When evaluating the claimant’s mental residual functional capacity, the claims handler will look at four primary functional areas: (1) understanding and memory; (2) social interactions; (3) sustained concentration, persistence, and pace; and (4) adaptation to changes in the work environment.

    Thus, a mental RFC form completed by a mental health professional (such as a psychologist or psychiatrist) should make reference to a claimant’s mental impairments due to the claimant’s mental conditions (for example, poor memory, decreased energy, illogical thinking, and so on). The mental RFC should also opine as to the claimant’s ability to persist in the areas of concentration and attention, as well as a claimant’s ability to interact socially in work settings, assimilate new information, and successfully engage in SRRTs (simple, routine, repetitive tasks).

    How Your RFC Is Used

    If your claim is still within the “own occupation” period, the LTD disability claims examiner will first use your RFC to determine if you can be expected to do your own job. For example, if your prior job was sedentary and your RFC is for sedentary work (or higher), the claims examiner will likely find you should be able to return to your job, unless your RFC identifies further non-exertional restrictions (non-exertional impairments may include mental or emotional limitations, such as memory problems from a psychiatric or neurological disorder, or an inability to concentrate).

    If your claim is within the “any occupation” period, then the claims examiner will review your RFC to determine whether you could return to any job in the economy.

    Note: to be considered able to work, you should be able to work full time, attend work regularly, be productive at work, and not need to take frequent rest breaks.