My name is Nick Ortiz, and I am a long-term disability attorney who has been handling these claims since 2005. I wrote this LTD appeal guide to help non-attorneys successfully appeal a wrongful denial or termination of benefits.
My mission is to provide you with the same forms and tactics I use when appealing a denial of benefits for my disability insurance clients. You may not be as well-equipped as a disability attorney (it’s hard to trump years of experience with book knowledge), but you will be more informed and prepared to file an effective appeal than someone attempting to appeal without reading this guide.
DISCLAIMER: Although this guide gives a lot of advice concerning the disability insurance appeal process, and I am providing tips and suggestions, the information in this guide is not legal advice and should not be taken as such. The tips and suggestions in this guide may not be appropriate for your unique case. Please do not take anything in this guide as legal advice unless and until you have hired me to represent you in your claim for benefits and I have agreed – in writing – to represent you.
Table of Contents
Who Is This Guide For?
This guide is for those denied disability insurance benefits who want to appeal the denial without hiring a lawyer. Whether your initial application was rejected or your insurer terminated your benefits after paying for some time, the appeal process is the same, and the same strategies apply. So, why would you not want an attorney to prepare your appeal for you? The answer always comes down to one thing: money.
Most disability lawyers work on a contingency fee, meaning they will only be paid if there is a recovery. On average, the fee will be around 1/3 of the benefits they recover (if they get benefits reinstated on appeal). However, these fees are not always limited to past due benefits, with many attorneys taking 1/3 of some or all your future benefits. With so much money at stake, it’s worth taking the time to research the appeal process to see if you are comfortable attempting to appeal on your own.
You can think of this guide as a cookbook written by a professional chef. Reading the cookbook does not guarantee you will be as good a cook as the author, but your chances of success are much higher than someone trying to recreate one of the chef’s dishes without any guidance.
So, read the guide, and if you still don’t feel confident preparing your appeal, or you think it’s more work than you can take on, contact a disability insurance attorney immediately. If you prefer to pay the attorney’s fee than struggle through the appeal process alone, you can hire an attorney to take over. At least after reading this guide, you will know what your attorney is doing and why it is necessary.
Why Would I Write This Guide?
You may be asking yourself – “Why is he writing this guide? Doesn’t he want more clients and fees?”
- First, I don’t want to work with clients who begrudgingly pay us our fees. I want to work with clients who wish to pay fair compensation for our experienced services. Although our fees are not “cheap,” they are fair considering the experience I bring to the table in appealing these cases.
- Second, I hope you or your loved one wins the appeal directly with the insurance company. However, over 50% of claims are denied on appeal. I hope you will consider our legal services if you need to file an additional appeal or take your case to court. I continuously revise our appeal process and presently win over 50% of the administrative appeals I file with insurance companies. In the remaining cases that go to court, I have obtained a recovery in over 98% of cases.
Do I Have to File an Appeal?
Your appeal requirements depend on whether your disability policy is subject to ERISA (the Employee Retirement Income Securities Act) and the specific terms of your policy.
If you have an ERISA disability policy, and your claim has been wrongfully denied or terminated, there are two main reasons why you need to appeal the decision:
- If you don’t file an appeal with your insurance company, you can’t sue them later, even if they deny your claim for a ridiculous reason. Under ERISA law, you must go through the appeals process before filing a lawsuit. Some policies require claimants to file multiple appeals.
- The internal appeals process is your last chance to “stack the record” with supporting information. During the appeals process, you can provide more evidence to support your disability claim and correct misunderstandings about your condition. If you end up in court, you won’t be able to submit new evidence or have you or your doctors testify, so preparing a thorough appeal with strong evidence is crucial. To put it bluntly – if your appeal sucks, your potential lawsuit will suck.
Your plan will be subject to ERISA if 1) you received your policy through an employer or union, and 2) the employer pays the premiums (in whole or in part) or the plan is promoted as part of a benefits package. Most group policies offered as part of an employee benefits package are.
If you have a non-ERISA disability policy that gives you the right to appeal, it is optional. Unlike ERISA policies, you will not lose your right to file a lawsuit if you fail to appeal. However, with a non-ERISA policy, you have much to gain and almost nothing to lose by going through the appeal process:
- Approval of a non-ERISA claim is more likely on appeal than an ERISA claim. The insurer knows its chance of losing a non-ERISA lawsuit is much higher in State Court without the protections of insurance company-friendly ERISA laws in Federal Court.
- Another advantage is that you can submit new evidence even after a lawsuit is filed. You and your doctors are permitted to testify, and you can even request a jury trial. This all means that it is unlikely that you will mess up your potential lawsuit by going through the appeal process.
The primary exceptions to ERISA are church and government (federal, state, or local) employers. Furthermore, it won’t be an ERISA policy if you pay all the premiums (even through payroll deductions) and your employer has remained neutral regarding whether employees sign up for the plan.
Step-by-Step Guide to Appeal a Denied Disability Insurance Claim
Before You Start
- RECRUIT HELP: You can appeal alone, but it would be much easier if you recruited help. After all, you are disabled. There will be deadlines, forms to prepare, and legwork involved. It is a process. And it doesn’t have to be a lawyer. You could recruit family and friends to help you with the appeal process. Be sure only to use people you trust and can rely upon.
- READ YOUR DENIAL LETTER CAREFULLY: You cannot effectively fight the denial of your claim if you do not fully understand why the insurance company denied your claim. After you determine why your disability claim was denied or cut off, you can move forward with my step-by-step guide to appealing the denial of your disability claim.
STEP ONE: Calendar Your Appeal Deadline
Take note of any deadlines in your denial letter. In most cases, the denial letter will say, “Your appeal must be filed within 180 days of the date of this letter.” You must give notice of your appeal to the insurance company before this deadline. These days, the insurance carrier should expressly state the deadline to appeal in the denial letter.
Now, get a calendar. Mark your 180-day deadline in red, then count backward 30 days from the deadline and mark that date in red, too. If possible, you want to send your appeal to the insurer on or before the 150-day mark so you can be sure that the insurer has received your appeal – and if not, you still have time to fix it.
Most non-ERISA disability policies will have a shorter appeal deadline than ERISA policies and will only give you 60 days to appeal. Get a calendar, mark your appeal deadline in red, then count backward at least five business days from the deadline, and mark that date in red, too. If possible, you want to send your appeal to the insurer on or before the 5-business day mark to allow time for it to be delivered by mail. This is not much time to prepare, so you must prioritize the information you want to obtain to support your appeal.
What If I Am Running Out of Time to Appeal?
If you are already approaching your appeal deadline, do not panic! You may be able to get an extension of time, but you still want to submit as much information as possible before the original appeal deadline. If you don’t have any supporting evidence, you should send the appeal letter anyway and ask for more time to submit additional evidence in the appeal letter.
Use one of our appeal letter templates to inform the insurer that you are appealing and that you are requesting that your appeal be held open or “tolled” while you submit additional evidence.
There is no need to wait for the insurer to respond to your request for more time. If the insurance company refuses to hold open the appeal, you can submit additional evidence until they decide. If your appeal is later denied, you can use the insurer’s failure to hold the appeal open as evidence against the insurer in court. You may not have time to complete the other steps, but you should still try.
STEP TWO: Request Your Claim File and Policy
Your policy determines your coverage and the terms and conditions that must be met to receive long-term disability benefits. Your claim file will contain your initial application, any correspondence between you and the insurance company, the adjudicator’s notes and letters, reviewing physician reports, and medical records from most, if not all, of your medical providers. Obtain this information before your appeal deadline if you can.
The insurance company must provide you with a copy of your entire claim file and policy within 30 days. Send the insurer a copy of Form 2, certified mail/return receipt requested. When you get the green card back from your certified return receipt, you will know what day the insurer received your request.
Calculate a deadline of 33 days after the insurer receives the letter (the extra three days allow time for the package from the insurer to travel by mail). If the deadline passes and you still haven’t received anything, call the insurance company every three days until you receive your file. Move on to the next step immediately after you send your first request for your claim file and disability policy.
You likely won’t have time to get your claim file from the insurer before your appeal deadline (and unlike an ERISA policy, the insurer may not be obligated to provide it to you), but it is still worth submitting a request. Send the insurer a copy of Form 9, certified mail/return receipt requested. Move on to the next step immediately after you send your request for your claim file and disability policy.
STEP THREE: Make Doctors’ Appointments
ERISA and Non-ERISA Policies
You will need to make appointments with the doctor(s) who are treating your disabling medical condition(s). If you have plenty of time left to file your appeal (90 days or more), you should try to schedule your appointments for about two weeks after you expect to receive your claim file from your insurer. If you have less than 90 days, schedule your appointments as soon as possible.
STEP FOUR: Review Your Claim File
ERISA and Non-ERISA Policies
If you have time, you should review your entire claim file to see what it contains. If you do not have enough time to get your claim file before going to the doctor’s appointments you scheduled in STEP THREE, skip to STEP FIVE and return to this step after receiving your claim file.
This is one of the steps where having someone to help you will make a big difference, as most claim files are large, disorganized, and often contain duplicates.
Before you begin your review, I suggest breaking the file down into smaller, more manageable categories:
- Medical Records: Your medical evidence should include all physician treatment notes, radiology and surgical reports, and emergency room records. Sort these by doctor and sort each doctor’s notes by treatment date. Separate MRI/CT scans (reports only, no films) or other lab reports. If there are critical medical records that are not in your file, that could help you understand why your insurance claim was denied, and you need to obtain the missing documents and submit them to your insurer via certified mail for consideration. Note the date of the most recent record from each medical provider (you will need this for STEP FIVE).
- Application and Claim Documents: This includes the forms submitted for your initial application and any supplemental forms the insurer later asked you to fill out, the most important of which are “Attending Physician Statement” forms that contain your doctors’ opinions about your ability to work. Note any limitations your doctor claims you have and any opinions, such as whether you can do full-time or part-time work or an anticipated “return to work” (RTW) date. Some insurance companies specifically craft these forms, made up primarily of “checkboxes,” in such a way that there are not any options that would indicate that you are disabled. If your doctor did not read carefully, they may have checked the most restrictive box, not realizing that it still indicates that you are capable of sedentary employment when really your restrictions are more severe than any of the options on the form.
- Reviewing Physician Reports: Unless your doctors say that you can work (in which case you will lose your claim), the insurer will hire a doctor to review your claim file and prepare a report in which they assess your ability to work. As you probably guessed, most of these reports will say that a claimant can work. These doctors review claims for the insurer regularly and wouldn’t get much repeat business if they supported claims. Read these reports carefully and highlight anything incorrect and any criticisms of your doctors’ opinions. If the reviewing physician claims to have spoken with your doctor over the phone, highlight anything indicating that your doctor agreed with the reviewing physician and check for a letter from the reviewing physician to your doctor “confirming” what they discussed (usually inaccurately). If so, did your doctor respond?
- Adjudicator’s Computerized Notes: A section of your file should contain a printout of the adjudicator’s computerized notes. These notes often contain shorthand and may not make a lot of sense. For example, it is common for the adjudicator to refer to you – the employee – as “EE”). Reviewing these notes is not a priority, but it may shed some light on why your claim was denied or contain notes of phone conversations with you that are not accurate. You can dispute any inaccuracies that you discover in your appeal.
- Vocational Reports: Once the insurance company has a report of your limitations (either from your doctor or a reviewing physician), it will typically request a vocational report. A vocational expert will review all the medical records in your file and prepare a report on whether you can do certain jobs given your restrictions. A CT scan or MRI is not necessarily going to identify the difficulty you have in standing and walking, so you need your records to bridge the gap between diagnosis and limitations for the vocational expert to accurately interpret how those limitations would impact your ability to do work activity. If your initial application was denied, or you are within the “own occ” period, ensure that the jobs being used for comparison have the same exertional level as those from which you became disabled. If your job was a “medium duty” job, but they only list “light duty” or “sedentary” jobs for comparison, then the insurer has not disproven your disability.
- Surveillance: Long-term disability insurance companies are well-known for hiring third-party investigators to put claimants under surveillance. They spend millions of dollars on surveillance to save billions in long-term disability claims. They want to “catch” you doing something you “shouldn’t” be able to do with your medical impairments, like taking out the trash or enjoying your grandchild’s birthday party. The goal is to get footage that they can show in court to prove you are not truthful about your limitations. If there are any surveillance reports or videos in your file, be prepared to explain in your appeal letter any activities shown on surveillance that could hurt your claim. For example, did they happen to catch you on one of your good days? Did the exertion shown on video surveillance leave you bedridden for days? Even if there are no surveillance materials in your file, you should know that the insurer can conduct surveillance at any time, even on appeal or while receiving benefits.
STEP FIVE: Request Updated Medical Records
ERISA and Non-ERISA Policies
You can obtain your medical records at a reasonable cost under the Health Information Technology for Economic and Clinical Health (“HITECH”) Act. You should not rely on your insurer to request your medical records, as it has no obligation to do so. For each doctor with whom you have treated after the date of the most recent records in your file, submit “Form 8 – HITECH Medical Record Request” to request all your medical records since that last date of treatment.
If you did not have time to obtain your file, request all your medical records since the date your disability began. When you get your updated medical records, read them. If there are any problems, discuss them with your doctor and have the problems corrected before you make copies to be included with your appeal.
STEP SIX: What to Do at Your Doctors’ Appointments
ERISA and Non-ERISA Policies
Your main goal at these appointments is to get your doctor to complete a residual functional capacity (RFC) form. It shouldn’t take long – it’s designed to be filled out quickly – so have the doctor fill it out while you are there. If your doctor previously filled out an Attending Physician’s Statement, bring it to remind them of what they previously reported.
Pick the form best suited for your situation and bring it to your appointment.
- RFC 1 – Physical: This form is for you if you have conditions that affect your ability to lift, sit, stand, walk, push/pull, etc., such as back/neck injuries or injuries to one or more limbs.
- RFC 2 – Mental: This form is for you if you seek disability benefits due to a psychological condition.
You should bring the form to your appointment and leave with it filled out and signed. Unfortunately, if you leave the form behind, you may never see it again. The same applies to sending the form to your doctor by fax or mail. Don’t do it.
It is useless for your doctors to write a note that makes simple, conclusory statements like, “This patient is disabled. Please give him/her all appropriate accommodations”. The doctor doesn’t need to state that he or she thinks you’re “disabled.” It is more important for the doctor to identify your level of impairment.
How supportive your doctors are will make or break your claim. Winning an appeal or a lawsuit relies almost entirely on the opinions of your treating doctors. No one, not even a lawyer, can win a long-term disability claim without compelling disability opinions from a claimant’s treating doctors.
If you received your claim file before your appointment, bring any reviewing physician reports you found in the file to your appointment, and ask your doctor if they are willing to write a letter to the insurer disputing the reviewing physician’s report. If any notes in the file mention a conversation between your doctor and the reviewing physician, bring that as well. Your doctor can review the notes and dispute any inaccurate statements attributed to them.
If your doctor hesitates to get involved, give him “Form 3 – A Doctor’s Guide to ERISA.” Most doctors who say they do not want to get involved don’t want to go to trial or be deposed. This guide explains to your doctor that they will not have to go to trial or be deposed since ERISA law does not permit this. It also explains the importance of your doctor’s assessment of your residual functional capacity and warns about potential tricks by the insurer.
STEP SEVEN: Submit Your Appeal and Wait for a Decision
Hopefully, you managed to avoid requesting an extension, and now you are ready to submit your appeal letter and all your supporting evidence. Use Form 4, and ensure you send it to the address for appeals, not to the insurance adjudicator who denied your claim. The address you need is stated in the denial letter. Make a copy of the appeal package for your records, then mail the package to the insurer via certified mail, return receipt requested (you want the one with the little green postcard).
This green postcard is very important, as it confirms the date that your appeal was delivered to the insurance company and is used to calculate the insurer’s deadline to issue a decision. Calculate 45 days from the date your appeal was received and mark that deadline on your calendar.
The insurance company must issue a decision on your appeal within these 45 days or send you a written notice indicating the reason for the extension and the date the insurer expects to issue a decision. ERISA law states that the extension will not exceed 45 days from the end of the initial period, but there have been divided courts on this issue:
In Howard v. Union Security Insurance Company, the claimant appealed the termination of her benefits on August 26, 2016. According to ERISA law, the deadline for the insurer’s decision was 45 days later, on October 10, 2016. By October 10th, neither a decision nor a notice of extension had been issued. On November 4, 2016, the insurer finally requested an extension for the appeal review and stated a decision would be issued by December 4, 2016. The insurer requested two more extensions on November 22, 2016, and December 23, 2016. On January 23, 2017, the insurer still had not issued a decision, so the claimant filed a lawsuit. The court later sided with the insurer and ruled that the claimant had failed to exhaust her administrative remedies before filing the lawsuit since she did not allow the insurer to decide on the appeal before going to court.
By comparison, in Fessenden v. Reliance Standard Ins. Co. and Oracle, the claimant, appealed on April 24, 2015. It was submitted to the wrong address, and Reliance did not confirm receipt until May 8, 2015. On June 17, 2015, the claimant was notified that Reliance needed an additional 45 days to decide. On August 27, 2015, Reliance issued its final decision, but the 90-day window had already closed. The claimant filed suit before the final decision was issued but after the deadline. The court sided with the claimant, ruling that ERISA deadlines require strict compliance.
If the insurance company requests more time, add another 45 days to the first deadline. The insurer can continue invoking its right to an extension of time so long as the insurer can show a valid reason for the extension, such as trying to obtain evidence, ordering an independent medical exam, etc. If the insurer upholds the denial of your claim or fails to issue a decision on your appeal within 90 days, you should consult with an experienced disability insurance lawyer.
Hopefully, you managed to avoid requesting an extension, and now you are ready to submit your appeal letter with all your supporting evidence. On or before the deadline you calendared in STEP ONE, submit your appeal letter and all the evidence (RFCs, medical records) you obtained. If you could obtain all the evidence you wanted to submit before the deadline, use Form 6.
Make a copy of the appeal package for your records, then mail the package to the insurer via certified mail, return receipt requested (you want the one with the little green postcard). Ensure you send it to the address for appeals, not to the same insurance adjudicator who denied your claim. The address you need is stated in the denial letter.
If the insurer upholds the denial of your claim, or if the insurer fails to issue a decision within a reasonable amount of time (usually 30-90 days, but ultimately, it is up to you to decide what is reasonable), then you have the option to hire an attorney to file a lawsuit.
Get More Help with Your Claim
An extended PDF version of this guide and all the referenced forms are available to download. If you are feeling overwhelmed, I provide free case evaluations to disability insurance claimants across the country. Call (888) 321-8131 to get help with your claim.