What To Do When Your Long Term Disability Claim Has Been Denied

What Do You Do When The Long Term Disability Insurance Company Denies Your LTD Claim?

Any number of medical problems could keep you from being able to continue with full time employment. You may have a major physical impairment like a chronic back pain disorder, a major mental impairment like depression, or a combination of both physical and mental conditions. Dealing with debilitating and disabling medical conditions can be exhausting and may consume all of your energy. That is why it can be so disheartening when a long term disability (LTD) insurance company denies your claim disability benefits.

If your claim for benefits has been wrongfully denied, improperly delayed, or unfairly terminated it is important for you to be familiar with the appeal process. The more you know about LTD appeals, the better equipped you will be to submit an appeal quickly and efficiently to avoid further delays. We know your efforts are better spent on healing and getting better- not battling with your insurance company.

Do You Have An Individual Policy or Group Policy?

You must first determine how you obtained the long term disability policy. Which one of the following applies you you:

  • you purchased an individual disability policy on your own directly from an insurance broker or representative;
  • you are a government employee and the government provides LTD coverage as a benefit of employment;
  • you are a church employee and the church provides LTD coverage as a benefit of employment; or
  • you have coverage as part of a group long term disability plan with your employer.

If you have an individual policy, or if you are a government or church employee, then you many not have to file any appeals directly with the insurance company before filing a lawsuit against the insurance company in state court for the wrongful denial or termination of benefits. However, if you have a group policy, you may be required to file one or more administrative appeals internally with the insurance company before filing a lawsuit against the carrier in federal court. This is why it is important to discuss your legal rights with an experienced LTD lawyer – to help you determine what you are required to do before filing a lawsuit.

The Insurance Company’s Duties When It Denies or Terminates A Disability Claim

When a long term disability claim is denied or benefits are cut-off, the plan administrator must send you a notice, either in writing or electronically, which includes a detailed explanation of why your claim was denied and a description of the appeal process. In addition, the denial letter must include the plan rules, guidelines, or exclusions (such as a pre-existing condition exclusion) used in the decision or provide you with instructions on how you can request a copy of these documents from the plan. The denial letter may also include a specific request for you to provide the plan with additional information in case you wish to appeal your denial.

Steps to Filing An Administrative LTD Appeal

Let’s assume that you are required to file an administrative appeal. A lot of work goes into filing an appeal and your time to file the appeal an LTD denial is limited. Thus, whether or not you hire an attorney to represent you, you should take immediate action and take the following steps in appealing a long term disability denial.

1.  Request the Long Term Disability Claim File, Policy and Plan From The Insurance Company. If your LTD policy was provided as a benefit of employment by your employer, then a federal law known as ERISA applies to your claim. ERISA is a federal act that is widely recognized as an extremely pro-insurance company law. The ERISA regulations are pro-claimant with respect to at least one of its provisions. ERISA regulations require long term disability insurers to provide you, on request and free of charge, with a complete copy of your entire claim file, which should include copies of all documents, records, and other information relevant to your claim for benefits.

Thus, before you file your formal appeal (and assuming you have enough time remaining in your appeal period), request a complete copy of your long term disability claim file in writing from your insurer (i.e., via fax, mail or email). A claim file consists of all medical records, internal notes and memos, internal correspondence, outside doctor reviews, surveillance video and any other information the insurance company used to make a decision on your claim. You need to know what is in your claim file before you file your appeal in order to know what additional information you can submit in order to have your claim approved. For example, you may discover that the insurance company was missing medical records from a doctor that you thought the insurance company had already considered. If you discover records are missing, you can provide them with your appeal. Part of your appeal to to make sure all positive medical evidence is in the claim file when the insurance company renders its decision.

A request for your long term disability claim file might read: “I have received your denial letter dated [date of denial/termination letter]. In accordance with the U.S. Code and ERISA regulations, please provide me with the following documents within the next 30 days: the full Long Term Disability (LTD) Claim File including all computer records, internal and external correspondence, investigative reports, and attorney or legal department review documents relating to this LTD claim and appeal. As you are aware, ERISA provides a daily monetary penalty for the failure to provide the materials requested within a reasonable time. I reserve all rights under any potentially applicable coverage under my long term disability policy. I will later notify when I intend to file my formal appeal.” The denial letter will usually indicate where to send your letter. You should submit your request in writing to this address with your claim number. You should also send it by certified mail in case you need to later show proof of your request.

2.  Request Your Entire Personnel File.  If your disability claim was denied or terminated during the “own occupation” period of the claim you will need to prove that you cannot perform the material duties of your own occupation. Your personnel file with your employer should contain a job description of your position with the employer, or otherwise provide detailed information concerning the duties and responsibilities your job required. Some employers prefer that such requests be reviewed by their legal department, so it sometimes takes employers awhile to comply with your request. Thus, you should not delay this request and make sure the request is in writing.

3.  The Initial Appeal.  Your appeal should be in writing and clear as to its intent. For example, you may start your letter with a sentence that says something like, “Please accept this letter as my formal appeal of your adverse decision dated [date of denial/termination letter].” You should make your appeal letter more of a cover letter, telling the insurance company why you disagree with its decision, and what information the claims handler will find in your appeal packet (the documentation mentioned below) that will change the denial into an approval.

Remember: any information you fail to submit with your appeal may never be heard or considered by a court of law in litigation. You should carefully consider all of the information you would like to include with your appeal before sending it via certified mail, fax or e-mail.

You should further enclose updated medical evidence and physicians’ opinions as to your limitations, all of which should work to satisfy the disability policy and plan’s definition of disability.  Your doctors’ opinions may be in the form of a narrative statement or Medical Source Statement. You should not rely upon your claims handler to draw an accurate conclusion about how your condition impairs your ability to work solely from the medical records alone. You may ask your doctor to thoroughly explain in writing how your medical conditions impair your ability to perform work activities or even routine activities of daily living. This will create a clearer picture of the difficulties you are having and why you are not able to sustain competitive employment. You may further document the side-effects of the medical treatment itself and how negative side-effects impair your ability to work. For example, you may be taking medications that have a very heavy sedative effect making it impossible for you to stay awake. What you do to treat your medical conditions can have just as much of an effect on your ability to perform work activities as the sickness or injury itself. As such, make sure you and your doctors identify any medications you are taking or treatments you are undergoing, as well as the side-effects from the same.

Note: You should not limit yourself to written reports solely from your primary care physician. Although you will likely have one main family doctor who treats you for your overall health, you might also have had treatment from specialists for certain conditions. Ask for support from these specialists as well. The more evidence you have and the more doctors you have to identify your limitations and restrictions, the stronger your claim becomes.

You can also get statements from others than your doctor to support whether or not you can work. For example, if you have a sickness (as opposed to an acute injury), your employer certainly should have some knowledge that something changed over time that caused you to be unable to work. You should therefore obtain written support from your employer about your dwindling performance. Also request a copy of your personnel file.  This type of information may show a history of good performance reviews, with the only negative reviews coming towards the end of your employment.

Who else? Keep the evidentiary support going. Obtain written statements from friends and family in your personal life. While they may not be medical experts, a spouse, pastor, other family member, close friend, or former co-worker can all provide excellent insight into the struggles you face on a daily basis.

You may also consider submitting a professional vocational assessment of why you cannot work with your medical impairments.

Time Limits: If your disability policy is part of a group plan subject to ERISA, you will have 180 days send your written appeal and supporting medical evidence. These time limits are very important! That is why you must read the denial letter and your disability policy carefully to determine everything you must do to make sure your appeal is timely and properly filed. Remember – if you have a claim governed by ERISA you will not have the opportunity to testify or submit any new evidence during the federal court lawsuit. That is why you should make sure to “pack the record” with all the evidence to support the claim that you can possibly muster.

4.  The Insurance Company’s Review of The Appeal. On appeal, your long term disability claim must be reviewed by someone new with the insurance company or claims administrator who looks at all of the information submitted and consults with qualified medical professionals if a medical judgment is involved. This reviewer cannot be a subordinate to the person who made the initial decision to deny or terminate benefits and the review must give no consideration to the prior decision.

Disability claims must be reviewed within a reasonable period of time, but not later than 45 days after the plan receives your request to review a denied claim. If the claims handler determines that special circumstances exist and an extension is required, the plan may take up to an additional 45 days to decide the appeal. This extension is automatic upon request. However, before taking the extension of time, the claims handler must notify you in writing within the first 45-day period explaining the special circumstances, and the date by which the plan expects to make the decision. [Note: there are exceptions to these time limits for single-employer collectively bargained plans and multi-employer collectively bargained plans. If you are a participant in one of those plans and you have questions about your plan’s procedures, you should consult your plan’s Summary Plan Description and collective bargaining agreement or contact the Department of Labor’s Employee Benefits Security Administration.]

5. Is This The End of The Administrative Claims Process or Do You Have a Second Appeal? Some LTD plans only require one appeal before you can file a lawsuit against the insurance company. Other LTD plans may require you to go through two levels of review of a denied disability claim to finish the plan’s claims process. Still others require one appeal, and make the second appeal optional (up to you to decide whether to bother with a second appeal). Just because you have the right to appeal, there may be reasons why you elect not to file an optional appeal and proceed directly to suing the insurance company. This is why you should discuss your legal rights with an experienced LTD attorney.

If two levels of review are required, the maximum time for each review may be less than the time limit permitted for one review. Thus, you should pay particular attention to your time limits to take action. If your claim on appeal continues to be denied after the first review, the plan must allow you a reasonable period of time to file for the second review.

If you are required to file two appeals before filing a lawsuit, you should continue to submit as much evidence as possible in the  second appeal to support your claim.

Once the final decision on your claim is made, the plan administrator must send you a written explanation of the decision. The notice must be in plain language. It must include all the specific reasons for the denial of your claim on appeal, refer you to the plan provisions on which the decision is based, tell you if the plan has any additional voluntary levels of appeal, explain your right to receive documents that are relevant to your benefit claim free of charge, and describe your rights to seek judicial review of the plan’s decision in federal court.

6. Suing the Insurance Company in Court. If you have an individual policy or if you are a government or church employee, you can sue the insurance company in state court if the disability insurance carrier wrongfully denies or terminates your long term disability claim. You may not even have to file any appeals with the insurance company before suing the insurance company in court. The advantages of state court over federal court are numerous in disability claims. In state court, you have the right to a jury trial and you retain the right to have witnesses, to introduce new evidence, and to testify against the insurance company before a jury of your peers. You do not have the right to any of these things in a federal court ERISA claim.

If you have a group policy, your administrative appeals have been exhausted and you have followed all of the strict guidelines imposed by ERISA, then the next step would be to file a lawsuit in federal court arguing that the insurance company acted improperly in denying benefits. In such lawsuits involving employer-provided insurance plans, you are not entitled to a jury trial. You can only have a “bench” trial before a federal judge. Most claims are resolved in written briefs through cross-motions for summary judgment. ERISA allows judges to review the insurer’s denial for an “abuse of discretion” only. In short, this legal term indicates that the judge’s ability to review and overturn or reject the decision being challenged is extremely limited. The judge will only look at the policy holder’s claim file with the insurance company in making a decision. As stated above, the claim file is maintained by the insurance company and contains all of the documents related to your insurance plan, claims, denials, and appeals.  The judge will not consider any updated medical records since the last appeal, and new written statements, or any testimony from you or your doctors at a trial. The judge will have on “blinders” and will only consider what was before the claims handler in your claim file at the time the claims handler denied your claim. Again – this is why providing as much supporting information as possible (doctor’s reports, letters from employers, letters from friends and family, etc.) during the administrative appeal review process is so important. Unless there is sufficient documentation in the file to support your claim, the judge may have to defer to the insurer or plan administrator’s reasoning for denying your claim.

What Are Your Legal Rights Concerning Your Claim For LTD Insurance Benefits?

Here is a list of your legal rights in connection with your claim for long term disability insurance benefits. This is not a complete list. It is just intended to highlight some of your most important rights.

1. You have the right to buy an individual long term disability policy directly from a disability insurance broker.
2. You have the right to obtain your own medical records.
3. You have the right to seek medical treatment from any doctor you prefer.
4. You have the right to a copy of your LTD policy and plan.
5. You have the right to a copy of the insurance company’s complete claim file.
6. You have the right (if not duty) to appeal your LTD denial.
7. You have the right to hire any attorney you choose to represent you in your claim.

1. You have the right to buy an individual Long Term Disability policy directly from a disability insurance broker. LTD is not only available as part of a group plan with an employer. In fact, you should consider purchasing an individual policy even if your employer provides disability coverage at no or little cost to you. That’s because, with few exceptions, an law unfavorable to consumers called ERISA applies to your policy when you receive the LTD insurance through your employer. Under ERISA, you do not have the right to have your case heard by a jury of your peers, you would not be able to testify at trial, and will probably not have the right to present new evidence at trial. Also, winning an ERISA lawsuit often require a higher standard of proof than disputes involving a LTD policy that you bought individually. If your individual disability claim is denied, you have the right to file a lawsuit against the insurance company in state court.
BACK TO THE LIST OF RIGHTS

2. You have the right to obtain your own medical records. Many claimants believe it is the insurance company’s duty and obligation to obtain their medical records after the claimant identified all medical providers in the application for benefits. The reality is that the claimant bears the burden of proof in proving up a disability. You should not rely on the insurance company obtaining your medical records. Before you even file your long term disability claim, you should request all relevant medical records from your doctors and submit them to the insurance company. The insurance company can only decide on what is on record in your claim. Many doctors’ offices are overburdened with medical record requests. If one of your doctors does not respond to the insurance company’s medical record request, then those records simply do not become part of the claim file. Moreover, if ERISA applies – as it does to most group plans – the federal court judge’s decision on the lawsuit will appeal will be based on what is in the claim file. Because the approval or denial of your disability application or appeal will depend on whether your doctors support your claim, you should see what is in your medical file before filing a claim. Plus, you may discover that there is incorrect information in your medical records. You should ask your doctor to correct any misstatements in your medicalfile.
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3. You have the right to seek medical treatment from any doctor you prefer. If you request all of your medical records from all of your doctors and the records from one or more of your doctors do not support your claim, you have the right to change doctors. If your doctor tells you he or she will never fill out any paperwork for your insurance company, you should consider changing doctors. The LTD insurance company will constantly be asking your doctors for updated medical records, will be calling your doctor’s office with questions, and will constantly be asking your doctor to fill out Attending Physician Statements. If your doctor is unwilling to respond to any of these requests or if your doctor flat out tells you he or she does not support your claim for disability, you may seek treatment from another provider. It would be extremely difficult to be approved for benefits if your own doctor does not support your claim for disability.
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4. You have the right to a copy of your LTD policy and plan. Every disability policy and plan is unique. {Note: the disability “policy” is the document from the LTD insurance company setting out the specific disability coverages; the “plan” is the agreement between you and your employer regarding the coverages to be provided as part of your employment.] When you are filing an appeal (or even the initial application), you should review the long term disability policy and plan your employer previously provided to you. If you no longer have a copy of the policy or plan, you should request of copy of them from your both your Human Resources (HR) representative and your LTD insurer.
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5. You have the right to a copy of the insurance company’s complete claim file. As detailed above, your claim has been denied or terminated, you should immediately contact your HR representative and your insurer to request a complete copy of your claim file. Sample language is provided above.
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6. You have the right (if not duty) to appeal your LTD denial. If you are part of a group disability plan, you may be required to file an appeal. If you have an individual policy, or if you are a government or church employee, you may not be required to file an appeal. An attorney experienced in LTD claims can help you determine whether your appeal is mandatory or optional. If optional, an attorney can further advise you whether an appeal is advised. Either way, before you initiate your appeal, you and/or your attorney should review the claim file in light of the policy language and evidence in support of the claim. You must appeal within the appeal deadlines, but you should also take care to submit the evidence you need to win your case with the appeal.
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7. You have the right to hire any attorney you choose to represent you in your claim. At the end of the day, insurance companies like to collect premiums but they do not like to pay out on claims. You need to do everything you can to satisfy your burden of proving you are disabled so the insurance company pays you the benefits you deserve. Your HR contact may offer to help you, but HR representatives are not always aware of the time limits and amount of proof necessary to support an LTD claim. Florida attorney Nick A. Ortiz is an experienced long term disability attorney who is compassionate and dedicated to the rights of those whose LTD benefits have been wrongfully denied or terminated. To see if you qualify for a no up-front cost contingency fee arrangement with an experienced LTD attorney, click here to complete the free case evaluation form on this website today. Most inquiries are responded to within 24 hours of submission.
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Please note that because every claim is unique, this is not a comprehensive list, merely a reminder of important materials for an appeal. Managing an appeal on your own can be risky if you are not physically or mentally capable. If the case becomes too complicated to handle on your own, you may want to seek out advice from a professional. Kantor & Kantor has a team of experts that work on a on a contingency fee basis, which means you only pay if we obtain a benefit for you. We understand the struggle of living with a chronic disease, and we are here to help. For questions about your long term disability claim, call (800) 446-7529.