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ERISA Disability Appeals
The ERISA appeals process is a significant part of the firm’s Long Term Disability insurance practice.
If your claim for long term disability insurance benefits is denied, the first step is to file an appeal.
Your group disability insurance plan will contain language indicating whether or not you are permitted to file one or two appeals. The insurance company is required to maintain an internal appeal review process so that the insurance company employee reviewing each appeal is completely independent of the employee that originally denied your claim.
In reality, the insurance company will often give strong consideration to the prior claim decision to deny or terminate a claim. An insurance company cannot require the filing of more than two appeals.
Following the decision on a first appeal, a claimant will then be permitted to file a lawsuit against the insurance company.
The information submitted in an ERISA Disability Appeal is extremely important, as all of the documents submitted become part of what is known as the “Administrative Record.” In the event that your ERISA appeal(s) are denied and a lawsuit is filed, the court in most cases will limit their review to the administrative record.
ERISA does not permit jury trials, so a lawsuit will be decided by a Judge, typically upon a review of this Administrative Record that has been created by the insurance company and a claimant with their appeal submission(s).
In order to present a powerful and persuasive ERISA disability appeal, we work closely with our clients and their treating physicians to ensure that the information developed for the appeal contains great detail and a strong articulation as to the severity and degree of impairment and the impact upon our client’s functionality.
We will also develop strong support for the vocational issues, focusing upon how and why our client cannot engage in work, or cannot perform the duties of either their own occupation, or any occupation, as that term may be defined in the policy, and may differ based upon insurer.
The rules for an ERISA appeal are extremely strict, with defined time frames. An ERISA appeal is akin to a trial on paper where the insurance company you are fighting is both the judge and jury. During an appeal, the claimant must present factual, medical, legal and vocational evidence to demonstrate how and why the claimant is disabled and entitled to benefits under the plan.
If that does not sound fair to you, we agree.
The entire process is stacked against the claimant. Lawyers who do not practice this specific area of the law are not likely to be familiar with the restrictions and what is permitted and what is not allowed. But we fight back and continue to refine our best practices as the case law continues to evolve.
Courts reviewing ERISA disability lawsuits often act as a rubber stamp of the claim termination or denial. The appeal is the only opportunity to create a record for litigation with the hope that the Court will be receptive to the demonstration of wrongful conduct by the insurer.
Some of the issues that are important to address when submitting an appeal of a denied or terminated claim include:
- Surveillance and Activity Checks – Insurance companies often conduct “activity checks” which are observations and videotaping of insured’s as they engage in everyday life. Insurance companies often take the results of surveillance 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. In advocating our appeals, we address the substance of the surveillance and make legal arguments about how it is misused by the insurance companies in many instances.
- Peer Review/Independent Physician Consultant Reviews – Insurance companies will often utilize doctors to review medical records, RATHER than examine a patient, and rely upon the opinions of these paper reviewing doctors for their claim decision. The obvious flaw in these opinions is that it is NOT based upon any actual examination, in sharp contrast with the opinions of the treating doctors, who actually see and treat the patients. In advocating our appeals, we attack the substance of these reports, as well as the bias of the doctor rendering the opinion, as often there are numerous cases we find through research where courts have been critical of their opinions.
- Independent Medical Examinations (IME) – Insurance companies often send claimants for examinations with doctors who are biased against the claim. While a claimant is typically 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 have been utilizing these evaluations in numerous cases. Often the policy does not even require a claimant to attend; but where 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, as well as the fact that the evaluation does not account for the day or days following the evaluation where the claimant is suffering immeasurably.
- Field Visit Interviews – Insurance companies are utilizing 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 – Where a claimant is being considered under an Any Occupation definition of disability, insurance companies will often engage in a consideration of their transferable skills and then determine whether the claimant is “employable”. On appeal, we carefully review these findings and develop rebuttal points to the identified “jobs” as well as the assessment of the claimant’s functionality, which is typically based only upon the insurance companies’ medical review, and without fair consideration of the treating doctor’s restrictions and limitations.
We represent clients in ERISA appeals on a daily basis and are skilled at navigating the extremely strict limitations.
Here are some typical examples of our successful cases:
UNUM ERISA APPEAL – for a 55 year old financial advisor whose claim was terminated after being paid for nearly 18 months.
LINCOLN FINANCIAL ERISA APPEAL – for a customer manager, mid-50s, working in a technology company. His conditions included scoliosis, spinal arthritis, and degenerative disc disease. After being paid for more than two years, his benefits were terminated.
OVERTURN AETNA ERISA DENIAL - assistant branch manager at a major financial institution was denied benefits after a review by an internal peer review.
To read about each of these cases in detail, click here.
That is why Frankel & Newfield, a top long term disability law firm, uses the symbol of a see-saw, weighed on one side with heavy metal spheres. We think this best illustrates how it feels to be on the receiving end of a termination or denial of disability benefits. It just doesn’t seem fair that at the same time that you are struggling with an illness or injury that is so debilitating that you cannot work, you must also contend with the challenge of fighting a hugely powerful disability insurance company in a highly restrictive administrative appeals process.
This is one battle you don't want to fight alone- and with Frankel & Newfield, you don't have to. Contact our office today at 877-LTD-CLAIM (877-583-2524) to learn how we can help as a top long term disability lawyer.