Erisa Lawyer banner

Disability Insurance and ERISA Articles

The importance of regular medical treatment

One of the most important strategies in proving a disability is by having medical evidence to support your claim. In times when you cannot work and finances are a major struggle you may think it is too much to continue to see your physican(s) but it is extremely important to continue to do so. Your physician who has seen you throughout this time, who knows your disability from a professional medical stand point, can be the defining factor between approval and denial of your claim.

The best and most effective way to show their support is through the medical source statements we request they fill out for us. These forms are crucial in showing the ALJ what your limitations are and describing your condition medically.

In the end having continued to regularly see your treating physicians, and following their medical advice, will make a huge difference in your case.

 

Affidavits: an important part to your case

Picture a thick stack of papers on the judge’s desk, they will have your medical history from the doctors you have seen during your illness, your work history, etc.

What about your personal history? What about what your illness has done to you emotionally? The toll it’s taken on your family life

An affidavit from a family member, friend or even former co-workers will give the judge a personal look into your illness and your life.

Affidavits are sometimes written by someone who you knew before and after or someone who helps you with your day to day living. When you attend your hearing, your loved ones generally do not testify before the judge so you need to get their perspective in front of the judge and an affidavit does this.

Your loved ones are important because they have seen the havoc your inability to work has caused in your life. By submitting a written affidavit, they will be able speak to the judge and state examples of how you were before your debilitating illness and how you are today. They can attest to how your life has changed.

Quite often these are very hard for your loved ones to write, as well as for you to read – but they are often an important supplement to your medical records and case. If you have any questions or would like some samples, please contact our office.

The cake is baked

Frequently, I get asked to explain the importance of getting an attorney involved during the administrative level of review in a short and/or long term disability claim, rather than once a “final denial” is received. A final denial essentially means the claimant has exhausted all administrative levels of review; therefore there is no longer the option of appealing the denial of his/her claim and the next step in his/her claim would be, in most cases, filing a lawsuit in Federal Court.

Since there is no appeal available to the claimant at that time, there is no longer an opportunity to submit additional evidence in his/her claim. We like to use the expression the “cake is baked” because you are unable to add any additional ingredients to your claim file, or your cake.

It is important to retain an attorney prior to receiving a final denial in your claim so we can ensure the evidence contained in your claim file is sufficient to win in front of a Federal Court Judge if a final denial is received.

Although it may appear you have submitted enough evidence in your file supporting your inability to work, there may be additional evidence obtained directly from your insurance company that you were not aware of. Did your company retain a physician to complete a one-sided medical records only review of your claim? Did that physician contact your treating provider regarding your condition? Did your physician complete a form incorrectly that you may not have seen?

These are all questions that are important to know before receiving a final denial in your claim and we can ensure you get all of the correct answers.

That judge doesn’t even know me!

Have you ever wondered how a judge makes a decision on whether or not to approve your benefits? Your hearing is only going to be 45 minutes long and there is no way you are going to be able to paint a picture of your life in 45 minutes well enough for a judge to understand what you are truly going through. Surely you should have more time to explain your disability and make the judge understand why you should get approved, right?

When a judge is looking through your medical records he is going to find more than just your disability. The judge is getting a description of who you are. You records don’t only describe your pain or medical condition. They also detail your appearance, your demeanor and can even discuss your habits. This can be beneficial to your case as easily as it can harm your case. When you tell your doctor you don’t get much sleep at night that helps to prove your case of insomnia. However, it might not be the greatest  reference if you tell your doctor you are not getting much sleep at night because the new puppy you just got for Valentine’s Day is keeping you up. You may have had insomnia before you got the puppy but it won’t matter because the judge is only going to remember the puppy.

Doctors can also add notes to your records even when you are not in the office. These notes are usually because you did not show up for your appointment. These notes are also very damaging to your case.  You may think that the follow up appointment with your primary care physician is not important. The rash that he was following up on is gone AND you even called to cancel the appointment. Having a note in your file that you canceled that appointment is one of the worst notes about you. To a judge, that one note means that you are unwilling to follow medical treatment as directed and therefore unwilling to try and make yourself better.

In the end, your medical records are you on paper. Make sure that the doctor knows everything that you would want a judge to know because that is where the judge is going to get his information. Your records are the main aid in the judge’s decision on whether or not to approve your benefits.

 

“I thought the fight was over, stop harassing me!”

So, after what was probably a pain staking fight for the short term/long term disability benefits you have been paying for and rightfully deserve, you finally received that golden letter from the disability insurance company saying your claim has been approved. Woo hoo, time to relax without that added stressor on your plate and you can finally focus on getting better… so you thought.

Two weeks later you receive a packet of questionnaires to be completed by you and your physicians. Thinking it is not that big of a deal, you complete the forms as requested and return them to the insurance company. Little did you know, these forms will be coming every five (5) to nine (9) months as the insurance company conducts a “review” of your claim.

“I feel like I am being harassed. Can they do this?” Unfortunately, insurance companies have the right to review a claim as frequently as they feel is necessary. If you do not comply with their requests for completed forms, updated medical records and questionnaires completed by your treating physicians, they can (and will) terminate or suspend your monthly disability benefits until the requested documents have been received and reviewed.

With that said, when you receive that packet of documents in the mail take a deep breath and call your attorney who assisted you in the process and ask that they help you complete the documents together. You may have someone assist you in writing the answers you provide them for each question, which will take away some of the pressure of completing the forms.

Make sure to have the requested documents returned to the requesting disability insurance company prior to the deadline provided. If you need additional time to complete the forms or your physician needs additional time, send a written request for an extension of time to the insurance company and make it aware of the status of the documents.

As always, if you need representation, assistance with your claim or help completing the necessary paperwork, give our office a call and we would be happy to assist you.

“Discretionary Language” is used by insurance companies to deny or terminate ERISA disability claims

What does it mean when an insurance company has written in “discretionary language” to a ERISA disability policy? Simply put, it means the insurance company gets to determine who is eligible for benefits and who is not. The discretionary language clause is often at the end of the insurance company’s disability policy or the summary of benefits you receive from your employer – it looks like another line of legal mumbo jumbo but in reality is the reason many people’s disability claims are denied.

If you get your disability benefits through your employer as most Americans do, your claim will almost certainly be subject to discretionary review. Armed with “discretion” to review your ERISA disability claim, the insurance company who already has a major conflict of interest in that it decides whether you are disabled and also has to pay the claim, is then able to retain its own doctors, aka “hired guns,” to review your claim who usually disagree with you and your doctors that you are disabled.

The insurance company then denies your claim using the “discretion” afforded to it in the ERISA policy after accepting its own doctors’ opinions and rejecting your statements and doctors’ opinions that you are disabled.

Many people are shocked to learn a disability insurance company can reject their treating doctor’s opinion – but these conflicted companies do it every day by hiding behind discretionary language they write in their disability policies.

Never trust that the insurance company has your best interests in mind – they are too conflicted to do so.

ERISA is a very complex area of the law so it is best to consult with an attorney who concentrates their practice on these types of cases. We recover millions of dollars in disability benefits for our clients every year and we represent more ERISA disability claimants in Arizona than any other law firm, call us for a free consultation regardless of where you are in the claim process (602) 482-4300 or in Las Vegas (702) 732-4410.

When your insurance company sends a questionnaire to your doctor

My insurance company has requested my treating physician complete a questionnaire regarding my ability to work and current medical condition, what do I do?

Requesting updated questionnaires be completed by claimants’ treating physicians seems to be a standard in the review process. Usually, these forms consist of yes or no questions, check boxes and requests for comments on restrictions and limitations.

If you know the insurance company has requested such questionnaires from your physicians it is beneficial for you to make an appointment with your physician to discuss and complete the questionnaires together. By completing the questionnaires together, your physician can accurately answer questions regarding your medical condition. If you are not present during completion of the questionnaire, your physician may inaccurately describe how your condition impacts your ability to function, your restrictions and/or your limitations.

It is also important that all questionnaires completed by your physicians are returned directly to your attorney’s office, not sent directly back to the insurance company. When questionnaires are returned to the attorney’s office they can be reviewed for any “red flags” or inaccurately answered questions.

Although your physician may not believe you are able to return to work, he/she may be completing the form in a hurry and mistakenly check a wrong box that can be detrimental to your disability claim.

Keep in mind, although the insurance company requests the forms be completed by your physicians it is ultimately your responsibility to ensure they are returned in a timely manner. Set a reminder for yourself to follow up with your physician’s office every two to three days regarding the status of your questionnaire to make sure it is completed and returned timely.

Winning Your Social Security Disability Claim: 15 Mistakes You Can’t Afford to Make!

Mistake #1: Assuming that what SSA tells you is true. Unfortunately, some of the advice Social Security Administration (SSA) employees provides to the public is incorrect. So if you aren’t happy with what SSA told you over the telephone, you’ll be glad to know it may not be correct. The problem is, many people have told me they did not file a disability claim for years (and went without benefits they deserve) simply because a SSA employee gave them bad information. Continue reading

How To Talk with Your Physician About Supporting Your Disability Claim

Well, it happened again this week. What am I referring to? The all too familiar story of a treating physician who does not support a patient’s claim for disability benefits. This usually comes as a complete shock to the patient who thought the physician was in their corner (In this article I use physician interchangeably to mean medical physicians, psychiatrists, psychologists or podiatrists).

I am aware of this problem because I often talk with treating physicians about a client’s disability claim. The client has told me they are certain the physician supports their claim. I am always surprised when the physician does not support the claim or does not “want to be involved in the claim.” To be sure, the physician’s response of “not wanting to be involved” is the same as not supporting your claim.

In this article I will discuss why is it critical to have the support of your treating physicians and hopefully how to obtain it.

Continue reading

Winning Your Disability Case in Three Words…Frequency, Severity and Duration

In a disability case, almost any symptom or limitation can be disabling; but to determine whether they preclude work, the relevant questions are how frequent are they, how severe are they, and how long do they last?

A critical point I make to people who contact me everyday is that their disability case is won or lost based on symptoms/limitations and not on their diagnosis! Clearly, under federal law, a disability claimant has to have a legitimately diagnosed physical and/or psychological disorder to even allege disability, but this is only the beginning of the analysis.

Continue reading