Attacking And Advocating: ERISA Appeals

At Frankel & Newfield, P.C., we know the insurance companies’ tactics and we will challenge them every step of the way in your ERISA appeal. Here are some of the ways insurance companies attempt to gather and use evidence against you.

Surveillance And Activity Checks

“Activity checks” are observations and videotaping of the insured as they engage in everyday life. Insurance companies often use the results to determine one’s level of functionality, or to argue that one’s claimed limitations are not as severe as stated, based upon the video surveillance.

We address the substance of the surveillance and make legal arguments about how it is misused by the insurance companies.

Peer Review/Independent Physician Consultant Reviews

Insurance companies often use doctors who review medical records, rather than examine a patient. The companies then rely upon the opinions of these doctors for their claim decision. The obvious flaw in these opinions is that they are NOT based upon any actual examination. This is in sharp contrast with the opinions of treating doctors, who actually see and treat the patients.

We attack the substance of these reports, as well as the bias of the doctor rendering the opinion.

Independent Medical Examinations (IME)

Insurance companies often send claimants for examinations with doctors who are biased against the claim. Typically, a claimant is required to attend such an examination.

We will attack the substance of the findings where appropriate as well as the bias of the doctor where founded.

Functional Capacity Evaluations (FCE)

Insurance companies often use these evaluations. Frequently, the policy does not even require a claimant to attend. This evaluation does not account for the day or days following the evaluation where the claimant is suffering immeasurably. It uses a claimant’s maximum capacity as its floor level of functionality rather than its ceiling.

When one is relied upon, we typically attack the findings as not being indicative of one’s ability to sustain activity on any full-time work basis.

Field Visit Interviews

Insurance companies use these interviews to secure admissions from claimants that are harmful to their claims.

On appeal, we submit personal statements/affidavits to address some of the issues that need further clarification.

Vocational Review/Transferable Skills Analysis/Labor Market Survey

Considerations under an “any occupation” definition of disability involve evaluation of transferable skills and then a determination of whether the claimant is “employable.” The identified “jobs” as well as the assessment of the claimant’s functionality are typically based only upon the insurance company’s medical review, and without fair consideration of the treating doctor’s restrictions and limitations.

On appeal, we carefully review these findings and develop rebuttal points.

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From our office in New York, we represent ERISA appeal clients everywhere. Contact us online to find out more about how we challenge insurance companies every day.