Frequently Asked Questions
Q. Why have my benefits been denied?
A. Usually, your benefits have been denied because the insurance company has taken the position that you are not totally disabled under the policy's definition of "Disabled." Typically, this occurs after you have submitted your medical records to the insurance company and the insurer has had their in-house medical personnel review your medical records. If your condition is not one that can be detected by an x-ray, MRI or a laboratory test, oftentimes the insurance company will deny your claim contending that there is a lack of "objective medical evidence."
Benefits may also be denied due to coverage issues, including problems that may arise during enrollment or the application process, or an insurer's claim that you had a pre-existing condition which prevents coverage.
In other circumstances, a denial of benefits can happen years after you were initially approved and began receiving disability benefits. An insurer may terminate disability benefits claiming that your medical condition has improved and therefore claim that you are no longer disabled and can return to work. The disability insurer may base their decision to terminate benefits on some improvement (even if slight) that is shown in your medical records, or through surveillance or by hiring a doctor to examine you. Oftentimes, a disability insurance company will cut-off your benefits after the expiration of the "own occupation" time period has expired and claim that you can perform some occupation even though you are no longer able to perform your previous job.
Q. I just received a letter denying my benefits. Do I have to appeal before I can file a lawsuit?
A. If your policy is through your employer, you must exhaust what is called your "administrative remedies" or else you will not be able to obtain these benefits. This means that you have to follow the insurance company's internal appeals process prior to filing a legal action. Usually you will have 180 days to file an appeal for benefits, which oftentimes includes submitting updated medical records and a letter explaining why you are entitled to benefits. Look carefully at your denial letter to find out the amount of time you have to file an appeal and the necessary information to submit to the insurance company in order to support your claim. Most of our clients contact us immediately after their disability claim is denied or terminated and ask us to represent them during the appeal process. It is a critical stage of your claim because once the appeal is finished, the door closes on your claim file and your only option is to file a lawsuit. Through our experience in handling thousands of disability claims, we are able to create very strong appeals that oftentimes lead the insurance company to reverse its decision to deny benefits.
Q. What is the difference between a disability insurance policy provision insuring one's "own occupation" versus "any occupation"?
A. An "own occupation" provision means that your policy will pay monthly disability payments in the event that you are no longer able to perform the material and substantial duties of the job you held before you became disabled. Most disability policies provide "own occupation" coverage for a limited period of time such as 12 or 24 months, meaning that after that period expires you must show that you are unable to perform "any occupation" for which you are reasonably qualified by your training, education and experience in order to continue to receive disability benefits.
Q. What is ERISA?
A. E.R.I.S.A. is an acronym that stands for a federal law called the Employee Retirement Income Security Act. ERISA was passed by Congress to protect employee benefits and to standardize the laws governing employee benefits. This law regulates the administration of most employee benefits offered through an employer including pensions, life, disability, and health insurance benefits.
Helpful ERISA Terminology:
When Congress passed ERISA in 1974, it defined several terms which apply to ERISA plans. Because you will see these terms used repeatedly in ERISA plans, we are providing you with a short glossary to assist in reading your plan. The complete, technical definitions of these and other words can be found in the statute at 29 U.S.C. 1002.
- Plan Participant - the employee who is enrolled in the employee benefit plan.
- Beneficiary - Usually the spouse or child of the employee who is also enrolled in the employee benefit plan (for example a spouse or child who is enrolled in the health insurance plan) or who may be entitled to receive benefits under the employee benefit plan if something happens to the employee/participant (for example, if the employee dies and a life insurance or a 401K death benefit has to be paid out).
- Plan Sponsor - the employer.
- Plan Administrator - Most courts have defined the administrator as the company or person that actually makes the decision to deny or pay benefits. If the plan is insured, this is usually the insurance company. If the plan is self-funded (i.e. not insured), there is often a committee of employees or a third party administrator (a TPA) that make the decisions.
- Summary Plan Description - This is a summary of the employee benefit plan which summarizes what amount of disability benefits an employee will receive, how you apply for short term or long term disability benefits, when benefits are paid, and how you appeal if your disability payments are denied. The summary must provide an accurate description of the short term and long term disability plan document.
- Plan Document - This is the document that governs the particular employee benefit issue. It provides the terms under which an employee will receive certain benefits, describes the benefits, and explains the rights of an employee under the benefit plan. If it is an insured benefit, usually the insurance policy will be the plan document.
- Pension Benefits - Benefits that are paid under a pension plan are usually retirement payments made to retirees based in part on their years of service, as distinguished from welfare benefits such as health and disability coverage.
- Welfare Benefits - Any benefit that is not a pension benefit, such as disability, health, dental or life insurance benefits.
Q. What is the "Standard of Review", and how does it affect my claim?
A. The method a court uses to decide a case is called the standard of review or standard of adjudication. In ERISA cases, there are 2 different types of review that a court may use, depending on key language which may be found in your plan document (that is, your benefit booklet or group insurance policy). They are: 1) de novo and 2) abuse of discretion (also called arbitrary and capricious).
The key to which standard may be applied in particular case is whether the administrator has been granted discretionary authority to interpret the plan or decide claims. All benefit claims will be reviewed using a de novo standard unless the plan documents state that the administrator has discretion to determine the outcome of the claim. If the administrator (usually the insurance company) has been given discretionary authority in the policy, then the court is forced to review the claim under an abuse of discretion standard.
What are these different types of review? De Novo: When a court takes a fresh look at a case, and pays no attention to the decision to deny disability benefits made by the insurance company. This is what you might see on television in a trial, where witnesses are brought into court and the judge or jury makes a decision based on the evidence that is introduced at trial. Abuse of Discretion: If the language of the plan gives the administrator discretion, then the insurance company's decision will only be reversed if they were both wrong and that there is no reasonable basis for their decision.
The abuse of discretion standard requires that the court give the administrator's decision deference making it more difficult for a person whose benefits have been denied to win. If the plan is insured, the court may take into account the insurance company's conflict of interest because the insurance company gets to keep every dollar of a denied claim. A key aspect of an abuse of discretion review relates to what evidence the court considers. In these cases, the judge will usually not allow any witnesses or new evidence. Instead, the judge will only review the claim file which was created before the lawsuit was filed, and will make a decision based solely on those documents. In these types of cases, it is very important to have an attorney that is familiar with ERISA to handle the pre-suit claim and appeal, as the contents of the claim file can make or break your case.
Q: If I have been approved for long term disability through my insurance company or employer, can I also apply for disability through social security?
A: Yes, in fact, most insurance companies will encourage you to apply for social security benefits. They may even hire an attorney on your behalf. The reason being, any amount of money you receive through social security disability benefits is an offset against your long term disability benefit amount through your insurance company. Insurance companies have a track record of hiring social security attorneys to represent the participants of their insurance plans, only to later terminate the long term disability benefit or deny benefits all together. However, it is usually best to apply for social security disability benefits because you paid for this benefit while working and it can be a nice source of income when you are unable to work.
Q: Why should I hire a long term disability lawyer?
A: Disability insurance companies, such as Unum, Cigna, Hartford, Lincoln National, Prudential, etc. are well known for denying and/or terminating valid claims and often use very aggressive tactics to deny claims. Working with a long term disability claims attorney to advise you and handle your claim gives you peace of mind, making the process easier on you during this difficult time. your chances of winning your case are much stronger when you are represented by a disability lawyer who has successfully gone face-to-face against the big insurance companies, and intimately understands disability law.
At O'Ryan Law Firm, we offer free consultations, obtain your files and documents from the insurance company, request your medical records, reach out to your treating physicians and obtain their medical opinions, draft strong appeal letters on your behalf, and continually follow up and make sure we are involved in the appeal review process with insurance companies. We do everything we can to help get your benefits approved.
Q: How long do I have to hire a long term disability lawyer?
A: It's never too early to hire a long term disability lawyer. Most often, the first question asked by potential clients is how long it will take to resolve the matter with the insurer. O'Ryan Law Firm's typical response is usually "it depends." It depends on whether the denial can be overturned through the appeal process, or whether the appeal process with your insurance company has already been exhausted, and the next step would then be filing a lawsuit against the insurance company. The earlier O'Ryan Law Firm gets involved in the claim, the more value we can add, and hopefully the sooner the claim can be resolved. O'Ryan Law Firm can certainly improve your chances of getting a claim denial overturned earlier and avoiding litigation.
Furthermore, if your long term disability is governed by ERISA and your long term disability application was denied, you, typically, have 180 days to appeal the decision. You should contact us immediately if your application for disability benefits has been denied.
Q: How much does it cost to hire a long term disability lawyer?
A: We usually handle long term disability claims on a contingency fee basis, meaning that we charge a percentage of the amount recovered and, if there is no recover, you owe us nothing. If your internal appeal is successful, we charge a percentage of the back pay that is owed, and we typically will advance any expenses.
Q: Can I work or collect unemployment while I collect long term disability benefits?
A. It depends on your disability policy. Most long term disability policies say that you are disabled only if you are unable to perform the duties of "any occupation." If that is the case, you cannot work at another type of job or collect unemployment benefits. Some policies do allow you to work part-time and collect partial disability benefits; however, we have found that working part-time makes it much more difficult to get paid disability benefits because the insurance companies usually believe that if you can work part-time, you can work full time.
Typically, our advice for people looking to collect unemployment while seeking disability benefits is if you can avoid collecting unemployment benefits, please do. Receiving unemployment can complicate the disability process and send red flags to the insurance companies evaluating the long-term disability case because when you apply for unemployment benefits, you must certify that you are able to work and actively seeking work.
Q: Should I hire an attorney for the appeals process of my denied disability claim?
A: Yes, definitely. O'Ryan Law understands how to get through all of the procedural hoops and meet the deadlines in order to give your claim the best chance of getting paid. Keep in mind that the disability insurance companies -- UNUM, Cigna, Hartford, Standard Insurance, Sedgwick, MetLife, Prudential -- all have very sophisticated employees who are vigilant about trying to find people who are trying to take advantage of the system. They use aggressive tactics such as surveillance, or hiring doctors to examine you or examine your records, to find a way to avoid paying legitimate claims. If you got your long term disability coverage through an employer, your claim is probably governed by a federal law called ERISA (the Employee Retirement Income Security Act of 1974). If your claim is denied, you must follow special appeal procedures and exhaust your administrative remedies before you can file a lawsuit. Our extensive knowledge and experience in ERISA law, appeals and litigation helps us fight for the rights of our clients.