The Answers To Our Most Frequently Asked Questions
Do I need a lawyer to help me appeal the denial of my disability benefits?
Of course you can appeal your own denial of benefits. But you should no more undertake your own appeal than you should perform complicated surgery on yourself. The key is knowledge. ERISA embodies a complex set of laws which require knowledge of their workings and experience in handling them. An ERISA lawyer can identify the strengths and weaknesses of your case and bring his or her knowledge of the current laws to bear in presenting your appeal in the most persuasive way. So, yes you can, but no, you shouldn’t.
Can I stop paying my disability insurance premiums while my claim is under review?
Under most circumstances, no. But the question of whether insurance premiums should continue to be paid during your claims review period is best answered by your employer’s benefits department or human resources manager. Remember, the terms of benefit plans are often misrepresented (often unintentionally) by employers. You should confirm in writing everything of importance which you’re told. And that confirmation should make clear that unless you are otherwise notified you are relying on the person’s statements, whether written or oral.
Can I file bankruptcy before or after filing for disability benefits?
Loss of income and high medical expenses are among the most common reasons forcing disabled people into bankruptcy. If you have disability benefits or have a disability claim and are forced into bankruptcy, you need to properly list your benefits or claim in your bankruptcy schedules. If you are currently receiving benefits, you need to list the monthly amount of benefits and the payor (who pays you) in your schedule of assets, besides listing the monthly payment in Schedule I, your current income. If your disability benefits have been terminated and you file bankruptcy (or your benefits are terminated after you file but before discharge), you need to list the contingent claim under Schedule B, paragraph 21, by listing your monthly amount and naming the insurance company and the plan. If you do not properly list your present (or contingent) claim in your bankruptcy petition, the insurance company or plan could argue that you are prohibited from suing for benefits, a position upheld by many judges. At the ERISA Law Group, we unfortunately encounter many prospective clients who have been misadvised by bankruptcy advisors or attorneys that listing your disability payment or claim is unnecessary. They are wrong. You must properly list your benefits or claim to retain it once your have been discharged by the bankruptcy court.
How often do disability companies deny claims and appeals?
It depends on the company, sometimes on the applicable jurisdiction, and always on whether the appeal is submitted by a qualified lawyer. Our lawyers generally enjoy a 50%-60% success ratio on claims appeals, whereas the general public (without a lawyer) seems to succeed far less often. Some companies will cycle through periods in which they grant a great many claims and appeals only to enter a different phase the following year in which very few claims and appeals are granted. The jurisdiction of the claim may also impact a claimant’s chance of winning. Review in some Southern and Mid-Western States can be notoriously conservative, which may lead to disability companies being more conservative in their claims handling of claims from those areas.
If I have multiple disability policies, doesn’t being granted benefits by one company require that the other company also to grant benefits?
No. Insurance companies can certainly be influenced by a claimant’s receipt of benefits from another carrier. If the policies are similar, for instance, an insurance company contemplating denial might reason that a court could be swayed by another company’s decision to grant benefits to the same claimant. But there is generally nothing in disability policies (nor the law) which requires one company to follow another company’s lead in granting benefits.
What is a “sedentary” occupation?
By definition, sedentary work is characterized by sitting and a lack of physical exertion. According to the Dictionary of Occupational Titles (DOT), sedentary work involves, “exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs may be defined as sedentary when walking and standing are required only occasionally and all other sedentary criteria are met.” The problem is that this definition, which is disfavored in legal circles, does not address issues of stress or other workplace elements. It simply depends on elements of exertional force, sitting, standing, and walking. Modern jobs, even those which are sedentary, tend to call on far more intricate functionalities in order to be properly performed.
Can my disability insurance company require me to have surgery in order to receive benefits?
An insurance company cannot directly require you to have a particular surgery or other treatment as a pre-condition to the receipt of benefits. But most policies contain provisions that you must be under the care of a physician and keep regular appointments. If your physician strongly recommends the surgery, which might reduce or eradicate your disability, and you decline, the insurance company might argue that your election constitutes a failure to follow your doctor’s advice. This might affect your claim. But most surgeries do not have guaranteed outcomes, e.g., back surgeries. In such cases, the risks may be greater than the hoped-for benefits. In these instances, it is unlikely that a disability company could successfully argue that your claim should be impacted by your refusal to consent to surgery.
Can I perform volunteer work while I’m disabled?
It depends on the nature and extent of the work. Carriers and plans tend to perceive ‘work as work’, whether you’re working for wages or for free. Therefore, if you are engaged, for instance, as a volunteer on a weekly basis that requires you to appear 2-3 days per week for 3-5 hours, you may face difficulty in maintaining benefits if the work is disclosed. Additionally, a sustained level of volunteer work can often be inconsistent with either your doctor’s recommendations or your stated “restrictions and limitations.”
Can I sue my ERISA disability insurance company for bad faith and punitive damages?
No. Damages for bad faith and punitive damages are not available in an ERISA claim. Benefits controlled by ERISA are limited in court to receipt of back benefits, an order for reinstatement, and sometimes attorney’s fees. Assuming the jurisdiction permits it, those cases which permit bad faith recovery and punitive damages are arise from so-called private policies or those excluded from ERISA, such as governmental or church plans.
If my short term benefits are terminated or denied, can I appeal? Or sue?
That’s a good question. The general answer is yes. Short term benefits, like long term benefits, can be administratively appealed and, if lost, litigated. But some short term benefits are not governed by ERISA but rather are wage continuation or contractual promises made by your employer. Those benefits may be controlled by State Law, not ERISA. Even if this is the case, the case may still be appealable or subject to litigation. Therefore, it’s critical to use the offices of a qualified ERISA lawyer to identify the character of your short term benefits.
Does it matter what kind of doctors are treating me, and how frequently, if I am receiving disability benefits?
One of the ways we attack an insurance company’s denial of benefits is by showing that their reviewing doctor or nurse did not have the requisite qualifications to evaluate and opine about a client’s disability. Therefore, it’s imperative that you have a physician familiar with treating your disabling condition and, if the illness requires it, specialized knowledge of the condition involved. As to frequency, you should see your doctor as often as he or she requests but generally no less than once every 3 months.
Do I continue to receive benefits while my case is on appeal? In litigation?
Generally, no. Once your benefits have been denied, payments are generally terminated. While there are limited circumstances where the carrier or plan can be induced to re-commence benefits, it is far more common that benefits are not restarted until you either win your appeal or prevail in litigation.
How long will my disability insurance benefits last?
That is determined by the policy or plan. Most policies or plans provide that a claimant will be paid until age 65 or their normal Social Security retirement age. But benefits can be terminated at any time. That’s why it’s so important to have access to an ERISA lawyer, even while you’re receiving benefits, in order to advise you about your rights and the steps you should take to remain on claim.
What are the best ways to protect against the denial of benefits?
While the list is numerous, some of the important ways are to: see your doctor regularly and follow his or her advice; do not actively engage in work, whether for free or profit; avoid exposing yourself on social media, such as Facebook, Google+, or Twitter; cooperate with your carrier or plan, including responding to their requests, submitting to independent medical exams, etc.; and take all reasonable steps to improve your health.
When disability insurance companies use “independent” doctors or nurses to review my case or perform an examination, are they really independent?
As a general rule, no. Most physician or nurse reviewers work for or are ‘in the pocket of’ their employers, whether third party providers or the carriers themselves. So the reports which they provide are often biased, inaccurate, and full of blatant misrepresentations. An ERISA lawyer should attack the credibility of physician reviewers who are unqualified. The ERISA Law Group aggressively evaluates the doctors and nurses used by insurance companies to perform reviews, with the occasional result of causing the carrier or plan to hire a more “real” doctor, who’s more likely to recognize your disability.
How important is it that my treating physician supports my disability claim?
Your treating physician is the primary professional whose communications with the carrier or plan influence whether you receive disability or not. Therefore, it is critical that your treating physician not only support but is prepared to document your disability claim. If you find that your treating physician does not believe that a particular illness, or combination of illnesses, disable you, you should consider finding another physician.
Are disability benefits taxable?
The ERISA Law Group does not provide tax advice, which is best left to a qualified Certified Public Accountant familiar with the taxation of your benefits. The general rule is that if you employer paid for the benefit premiums (where the benefits were insured) or provided them without employee contribution (where they were not), then the benefits are taxable. If you contributed to some or all of the premium payments, then that portion may not be taxable. Again, this is a general rule and should not be relied upon as a substitute for good tax advice.
Will I lose my employee benefits, such as health coverage, if my disability claim is denied?
Again, it depends on the employer’s policies. Quite frequently, employee benefits like health, waiver of premium (for life insurance), etc., are paid as long as the employee is recognized as disabled. Once the disability claim is denied, those benefits can be terminated. Other policies take other approaches and preserve the ancillary benefits during the appeal period. It is important to remember that if other benefits, such as a waiver of premium benefits is denied, it too can be appealed through the same appeals process used to reinstate long term disability benefits.
My disability insurance company is delaying and delaying granting me benefits. What can I do?
Under certain circumstances you can proceed to a lawsuit. But that may not be the best idea. The company may be uncertain as to whether to grant you benefits. Giving it extra time in which to render their decision may yield a grant or reinstate the benefits. At the ERISA Law Group, we have a practice is waiting for a decision until there is absolutely no conceivable benefit for the claimant to wait any longer. Then we notify the insurance company or plan that if it doesn’t decide the claim or appeal by a date certain, we will sue.
Does it do any good to complain to my state’s Department of Insurance if my disability company is treating me unfairly?
It can. Some states have very robust departments of insurance, which can timely investigate a disability claim that has been improperly denied. Also, if you have inadvertently missed the time in which to file your appeal (perhaps you were too sick to complete it), asking for the intervention of your department of insurance might possibly give you the opportunity to “reopen” the claim. Sometimes, a department of insurance will cause the carrier to further evaluate your claim and reverse its position. It’s important to remember that departments of insurance only have jurisdiction over insured plans – not those which are self-insured.