The worst has happened. You are too sick to work and support your family. Your paycheck has stopped. If you are a professional or business owner, your revenue is declining because you can no longer run your business as well. Your medical bills are piling up.
Now the final blow – your disability insurer has denied your claim, even though you know you can’t work and your doctors all confirm you are disabled. The denial letter from the insurance company makes you feel like you are being called a faker or liar.
This is likely to be the low point of this entire ordeal, but it does not have to be the end of the story. There is yet hope of recovering benefits, but the process is complex and full of pitfalls for the inexperienced. The stakes have risen immeasurably once the claim has been denied.
When a disability insurer denies or terminates disability benefits under ERISA, by law you have 180 days within which to submit an “administrative appeal.” If your claim is under a private policy (or if you are a government employee) you have the right to request reconsideration.
This is the point in your claim when expert assistance is most valuable.
Should I Handle My Own Administrative Appeal?
The simple answer is almost always no. This is precisely what your insurer wants you to do. Why? Because in most cases you only get one chance to submit an appeal (although a few plans offer two levels of appeal). If you prepare your own appeal but fail to convince the insurer to reinstate benefits, you may cause permanent, often fatal damage to your claim. The reasons why are complex, but they have a great deal to do with how ERISA cases are litigated in federal court.
Two things about federal ERISA litigation amplify the importance of the administrative appeal. First, in ERISA litigation, the court is generally limited to reviewing the evidence in the insurer’s claim file. So, if your appeal fails to include important testing that would verify your disabling symptoms; if it fails to address perceived inconsistencies in the evidence; if it fails to include detailed medical opinions that carefully and clearly explain your disability; if you fail to generate evidence responding to every point that has been made or could be made by the insurer – an attorney cannot fix those problems for you in litigation. The law prevents us from adding evidence during the lawsuit. We can only do that during the appeal.
The second problem is that, in an ERISA lawsuit, the judge cannot award you benefits simply because if he finds that the weight of the evidence supports your disability. In an ERISA lawsuit, you must prove that the insurer’s denial was “arbitrary and capricious.” This means the evidence supporting your claim must totally overwhelm the insurer’s evidence. Most people who do not live in the world of disability claims do not know how to present a claim in a manner that overwhelms.
So, the insurer wants you to handle your own appeal. They want you to make mistakes, knowing that if you try to hire a lawyer after the appeal is denied, it will be too late for us to help. The same concerns apply where well-meaning attorneys not specializing in ERISA or long-term disability try to handle an appeal. Attorneys who do not make these claims the focus of their practices are as likely to make fatal mistakes as are lay people.
If you are reading this before your appeal is due, then now is the time to contact an ERISA expert for a free phone consultation. The ERISA experts at Robinson & Warncke have a 95% success rate in getting benefits paid when we are able to prepare the administrative appeal.
Whichever law governs, it pays to have attorneys who specialize in long-term disability claims, and who know the ins and outs of ERISA and bad faith litigation. At Robinson & Warncke these claims are our sole focus. We have litigated numerous cases in federal and state courts, often taking them to judgment (and sometimes beyond judgment into the federal Courts of Appeal).
Top 5 Mistakes People Make Preparing an Administrative Appeal
- Trying to Do It Yourself. As noted above, unless you are an expert in medicine and disability law, you are likely to make mistakes that permanently damage your claim. Our firm has had to decline a great many cases that could have been won if we had been contacted to prepare the administrative appeal. If we are contacted after the appeals process has ended, we are stuck with whatever evidence the insurance company has in its files. Most of the time, it isn’t enough to win under ERISA’s difficult burden of proof.
- Failing to obtain your claim file from the insurer. You have the right under ERISA to a complete copy of the claim file. It contains valuable information that will help guide how to prepare the appeal – if you know what to look for. There may be information in it that demonstrates a sloppy or biased claim investigation and decision. There will almost certainly be medical and/or vocational consultant reports that underpin the denial. Those reports require a direct and thorough response. Some people who try to handle an appeal without a lawyer failed to even obtain the claim file before responding.
- Failing to obtain the “objective evidence” necessary to win an ERISA claim. In ERISA disability litigation “objective evidence” is extremely important. Objective evidence is anything that can’t be faked by the claimant, or which doesn’t rely on your word. Any abnormal test result can help your ERISA case. Think blood tests, MRI’s, CT scans, SPECT scans, abnormal clinical examination findings, vestibular testing, cardiac testing, exercise tolerance testing, neuropsychological testing, and the like. In ERISA cases it is especially important to provide objective, scientific verification for everything you can in order to prove your case. Sometimes testing is needed for the legal case even if there is no treatment need for it.
- Failing to “connect all the dots” in your proof. In ERISA disability cases it is never enough for your physicians just to say “this patient is totally and permanently disabled.” We have seen comments in the policies and procedures manuals for multiple insurers stating that general statements from a treating physician that the claimant is “disabled” are entitled to very little weight while objective test measurements will be given far greater consideration. The doctor will have to explain all the objective data that support your diagnosis and verifies and measures your symptoms; explain exactly how your disabling symptoms translates into specific work restrictions (which can be physical, emotional, cognitive, or all three). Your doctor may have to explain why a notation of “improvement” in your record does not mean you are able to go back to work. He or she will have to respond directly to any inaccuracies in the insurance company doctor’s report. Unless you are a full-time specialist in disability law and medicine, getting this part of the appeal right is next to impossible. You may have the best doctor in the world to treat your condition, but medical schools don’t teach doctors how to deal with insurance company runaround; and even well-meaning, supportive doctors need guidance from legal experts to get this right.
- Failing to hire the right experts. If your claim turns on a vocational question about how your occupation is defined and your duties were performed, you will probably need to hire a vocational expert to explain why the insurance company’s analysis is wrong. If there is a question about your benefits calculations, you will probably need an accounting or payroll expert. If you have a brain injury you will probably need a different kind of expert to explain this very complex field of medicine. These are but a few examples. Again, the administrative appeal is your last chance to assemble the evidence to prove your claim. If your claim turns a question that requires expert clarification, now is the time to obtain that evidence. Some cases require multiple experts in multiple fields. If you don’t hire them now, that hole in your proof can never be fixed.
- Failing to see how the insurer’s decision conflicts with the language of your plan. An ERISA attorney loves to look for subtle ambiguities in the contract language. There is a principle of law that says that if an insurance term can reasonably be interpreted more than one way, the courts will impose the reading that offers the greatest coverage. After all, the insurance company drafts these incredibly confusing documents, and they are in control of the terms. If they don’t write the policies clearly, the consequences should be on the insurer, not on you. The likelihood of a non-expert finding subtle ambiguities in an insurance contract or pretty slim. The insurance attorneys at Robinson Warncke make this part of their mission.