Appealing — Suing Over Your Claim
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Pre-Litigation Internal Appeal
Before filing suit, you must pursue a timely administrative appeal. The administrative appeal is required by ERISA regulations. If you do not submit an administrative appeal, the denial or termination of your benefits cannot be challenged in court. Because many administrative employee benefit appeals are denied, it is likely that your appeal will be denied as well. However, this does not mean that you do not have a good case.
Disability insurance companies are required under ERISA regulations to have an administrative appeal process, so they do. However, there is very little “downside” for an insurance company to deny an appeal because many people do not find a lawyer, and most people do not sue. Even when suits are filed, the courts often support the insurance company’s decision, so the disability claimant is faced with a significant challenge.
This is generally how we handle an administrative appeal to an insurance company or third-party claims administrator after benefits have been denied or terminated:
- If we do not already have your records from the insurance company, we get them.
- If we do not already have the insurance policy, the certificate of insurance, and/or the summary plan description from your employer, we get them.
- We identify all your current treating physicians and any other treating physicians who are not listed in the insurance company’s records. We get authorizations from you and use those authorizations to get current medical records. It is important to submit new medical evidence with the appeal and we try to be as comprehensive as possible in submitting new medical evidence.
- If your doctor’s records are unclear or if there is any uncertainty, we may ask your doctor to submit a detailed report regarding your status. If your doctor’s opinions are contradicted by the insurance company’s opinion, we may ask your doctor to make a comment on the insurance company’s doctor’s opinions. (A lot of doctors are not willing to do “legal medical” evaluations. They often do not like writing letters to insurance companies; they often do not like talking to lawyers. We may ask you to talk to your doctors; we may write a letter to your doctor; we may call the doctor’s office.)
- We investigate the insurance company’s doctors, who are used to terminate or deny your benefits. Sometimes we have files, prior opinions about, or other useful information on those doctors, which we can include in the appeal.
- Sometimes, the defense doctors do not properly understand the disease from which you are suffering. We often include medical literature regarding your disease and/or symptoms.
- We believe that it is important that you submit a declaration supporting your claim. Based on a review of the records that we have, we will draft a declaration for your review and approval. We will then send the declaration to you and ask you to comment on it and make corrections, changes, and/or additions. Sometimes we get declarations from persons and your doctor – especially when you have care takers or significant others who can describe the nature and extent of your disability. Sometimes we submit a video showing how you live so that the insurance company can fully appreciate how disabled you are.
- Since we have a lot of information from the beginning, we start working on our appeal letter right away. However, the letter is not completed until we have all the information we need.
- If you have Social Security Disability or workers’ compensation benefits, we get the records from those claims.
What do Our Appeal Letters Often Contain?
Our appeals generally consist of:
- A lengthy appeal letter (often of 50 to 100 pages) together with your declaration
- Your doctor’s letter, if necessary
- Other declarations, if necessary
- Medical literature about your conditions and symptoms
- New medical records
- Information about the insurance company’s doctors
- Information we have (if any) about the insurance company’s unfair practices
Reviewing and Commenting on Post Appeal Medical and Vocational Reviews
For most appeals submitted after April 1, 2018 (regardless of when the claim began), if the insurance company or plan gets new medical and/or vocational reports, as it almost always does, it must provide those reports to you and allow you to comment on them before it makes its final, post-appeal decision. This is your last chance to present evidence and arguments supporting your claim for benefits – so use it. We have seen that often the doctors used for these post-appeal reviews or examinations are: unqualified; biased; not provided all the facts; ignore important facts and “cherry pick” the facts they rely upon; and/or are told by the insurer or plan what to write. We have seen that often post-appeal vocational reviewers: fail to follow ethical or professional standards; make up “facts;” or reach conclusions unsupported by the facts. But it is not enough to say it – you must show it.
We treat these review opportunities almost as a second “appeal” because this is the last chance to submit meaningful evidence supporting your claim.
- It is also important to submit a comprehensive appeal because if you have to sue, once you go to court, most of the time the only evidence which a court will consider on the merits of your claim is the evidence in the administrative record. So, if we do not put it in now, it is likely the judge will never see it.
- If your appeal is granted, then you will be placed back on claim retroactively and paid back benefits. If the appeal is denied, we will usually file suit seeking benefits through the litigation process.
The insurance company has 45 days to decide most appeals. However, usually the insurance company requests and takes more time. Therefore, appeals are usually not decided until approximately 75 days after they are submitted. (For claims that initially arose before January 1, 2002 the insurance company has 60 days plus 60 days, not 45 plus 30 days). When the insurance company orders additional medical reviews or an independent medical examination that may further delay a decision on the appeal – by several additional weeks or even months.