You should not give up if the insurance company denies or terminates your claim for long term disability (LTD) benefits. Most employees have disability insurance coverage through a group plan with a private-sector employer. If your employer is large enough, or if you obtained your policy through an employee organization or union, then ERISA rules and regulations come into play. According to ERISA, you must “exhaust” your administrative remedies before you can file a lawsuit. This means you must follow the terms of the insurance policy and go through each step of the appeals process directly with the insurance company:
- If the insurance policy states that you must file one appeal, then you only have to file one appeal before filing a lawsuit.
- If the insurance policy requires two appeals, then you must file two appeals before filing a lawsuit.
- Some insurance policies have one mandatory appeal and one “optional” appeal. In this situation you should consult with an attorney to determine your best course of action.
It may seem unlikely that the same insurance company that denied your claim will suddenly change its mind and approve you on appeal. However, the appeals are evaluated by a different claims handler at each level of appeal and the new claims handler may just disagree with the denial. Many claimants receive benefits during this appeals process.
When You May Not Have to File an Appeal
There may be other situations where you do not have to file an appeal at all before filing a lawsuit. Generally, you do not need to appeal if you have an individual policy purchased directly from an insurance agent or broker, or if your policy is sponsored by a government or church employer directly (in other words, if the policy is not through a union or employee organization). In such situations, you may be entitled to file a lawsuit after your first denial.
When Only One Appeal is Available After a Denial
The long-term disability appeal process begins after an LTD claim has been wrongfully denied or terminated. LTD claims are most often cut-off after 24 months when the definition of “total disability” under the policy changes from “own occupation” to “any occupation.”
In other instances, LTD claims have been terminated after the insurance company conducts video surveillance or sends the disability claimant for a Functional Capacity Evaluation (“FCE”). The FCE is usually conducted by a physical therapist, and such therapists almost always conclude that the claimant is not putting forth a good effort and that the claimant can work full time.
Receiving a denial letter on your claim for long-term disability (“LTD”) can be a gut-wrenching, frightening, and frustrating experience. But now you must gather your bearings and fight the wrongful denial of your benefits.
An Internal Appeal May Be Required Before You Sue
If you have been denied benefits, you should review your insurance policy to determine what you must do to protect your rights. Specifically, you should determine how many times you are required to file an appeal with the insurance company before you are permitted to go to court.
If your LTD claim is part of a group plan through your employer, then it is likely governed by the Employee Retirement Income Security Act (ERISA). Not only do you have the right to appeal the unfavorable determination in your claim, you are often required to appeal the decision to protect your ability to file a lawsuit down the road.
Managing an appeal on your own can be risky, especially if you have a severe physical or mental illness or injury. If you feel overwhelmed or that your case is too complicated to handle on your own, you should seek guidance from a legal professional.
The LTD appeal process has two potential outcomes. Either your appeal is successful and a check is issued for past-due benefits and your claim is reinstated, or your appeal is denied and you have the right to file a lawsuit (unless the policy offers a second optional appeal or requires a second administrative appeal before filing a lawsuit).
You may be required to file only one appeal, but you must know how many appeals you have because you need to know how many opportunities you have to submit medical evidence to support your claim for benefits. This is critical because you must “pack the administrative record” with all of the evidence you would want a court to review down the road in a lawsuit. That’s because the court’s review is limited to the administrative record, which is all the evidence that was in your claim file when the insurance company made its decision.
When You Have One Mandatory and One Optional Appeal After a Denial or Termination of Benefits
Why Would I File an Optional Appeal?
You must know how many appeals you have because you need to know how many opportunities you have to submit medical evidence to support your claim for benefits. This is critical because you must “pack the administrative record” with all of the evidence you would want a court to review down the road in a lawsuit. That’s because the court’s review is limited to the administrative record, or all the evidence that was in your claim file when the insurance company made its decision.
When deciding whether you will file an optional appeal it is important to consider the evidence that has been submitted in support of your claim. If you have new office visit notes, a new statement from your treating physician, new diagnostic testing, etc., then it may be beneficial to file an optional appeal.
What are your options after your first appeal is denied where you have the right to one mandatory appeal and one “optional” appeal? You can either (a) file the optional appeal or (b) skip the optional appeal and sue the insurance company with a lawsuit in court. So which should you choose?
That really depends on the individual circumstances of the individual case. In some cases, it makes more sense to go through the optional appeal. For example, if there was not a definitive medical diagnosis through the first appeal and additional medical testing disclosed a more specific diagnosis, then a claimant may want to submit this new evidence during the optional appeal. Or, if a Social Security disability claim was approved after the first appeal, then the claimant may want to go through the optional appeal in order to submit evidence of the Social Security win.
However, if a claimant is tired of dealing directly with the insurance company, the claimant may decide to skip the optional administrative review step and go directly to Court. That way the claimant is no longer dealing with an insurance adjuster who appears bent on denying the claim and instead is asking the Court to step in and make the insurance company pay.
When You Have Two Mandatory Appeals After An LTD Denial
When you have two mandatory appeals, you will have two separate opportunities to (a) submit medical records to support your claim; (b) submit forms and/or letters from your treating physicians to support your claim; (c) poke holes in the insurance company’s “Peer Review” physician reports; (d) submit non-medical evidence in support of the claim (such as an affidavit or “day in the life” video; and (e) a legal brief outlining legal errors in the denial letter.
Please note that if you have two “mandatory” appeals available to you in the administrative review process directly with the insurance company, you will have to go through both of these reviews before you can go to court and file a lawsuit in your claim.
When to Appeal
There are several key deadlines you must follow when you file a claim for disability insurance benefits:
- The deadline to file your claim.
- The final deadline to file your “proof of loss.”
- The deadline to file any administrative appeals with the insurance company before going to court. A couple of key things to note here: the time to file an appeal depends on the language in your policy—typically between 60 and 180 days, and you may have the right to file several appeals, but you may not be required to file any appeals before filing a lawsuit in court.
- The time limit to file a lawsuit.
What Will a Long-Term Disability Attorney Do For You?
Mr. Ortiz and his staff offer detailed advice to clients throughout the appeals process. Here are the most important things he will do in your case:
- Conduct the initial interview with the client.
- Advise the client about long-term disability claims.
- Gather documentary evidence that may be used in the case, including witness statements, medical records, medical opinions from your doctors, employment information, and vocational assessments.
- Request, review, and analyze the client’s entire claim file to determine what medical and other documentary evidence is in the file.
- Request, review, and analyze the client’s insurance policy to determine the definitions of key terms in the policy and to determine what coverages are available under the policy.
- Conduct a detailed evaluation to determine what must be proven to receive benefits under the LTD insurance policy.
- Analyze the legal issues, such as the burden of proof, and whether state or federal law applies.
- Take a sworn statement from the client’s physicians or treating providers to fully understand the client’s condition, resulting limitations, and prognosis.
Once the insurer receives your administrative appeal, the insurance company has 45 days after it receives the appeal letter in which to make its decision. This short deadline can be extended by an additional 45 days if the insurance company makes the request for extension in writing within the first 45 days of review. If the insurance company fails to meet the deadlines imposed by federal law, Mr. Ortiz will review your file with you and discuss whether filing suit immediately strengthens your legal position.
While there are no guarantees that the appeal of your claim will be approved on the first try or even the second try, we will work diligently to help you file an appeal that is clear, concise, and complete with all necessary information.
Our job is to make the insurance company pay the benefits you are owed and maximize your recovery under your LTD policy. We never charge any attorney fees or costs unless we recover benefits for you. If your claim has been denied or terminated, the legal team at Ortiz Law Firm can help you cut through the red tape and fight for your disability benefits no matter where you live in the United States. Give us a call today to discuss your claim at (888) 321-8131.
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