APPEALING A LONG TERM DISABILITY DENIAL
Appealing the denial of disability benefits under the Employee Retirement Income Security Act (ERISA) is both a right and an obligation. Before you can sue for benefits, you must appeal the denial, and every bit of information you plan to include in a lawsuit must be part of the record during the appeal. Supplying the following information to your health plan doesn't mean your appeal will be granted; rather, it creates the only record and documentary evidence upon which you can base any subsequent litigation if your appeal is denied. Please note that because every claim is unique, this is not an exhaustive list, merely a reminder of the most important materials for appeal. If you have any questions about how to file and what to include in your individual appeal, consult legal counsel.
APPEAL CHECKLIST Do's and Don'ts: What you should do when appealing your disability claim denial:
- DO get your claim file. You can't put together a puzzle without all the pieces. Request your claim file and policy from your insurance carrier before initiating the appeal process. The claim file should include all medical records reviewed, internal notes and memos, outside doctor reviews, surveillance video and any other information the insurance company used to make a decision on your claim. Review all of this information so you know what to focus on in your appeal.
- DO supplement your medical records with personal statements from your treating physicians. Medical evidence alone may not lead to the conclusion about whether or not you can work. The reasons you can't work should be explained thoroughly by your doctors in letter form.
- DO get written support from any and all treating physicians, not just the doctor treating you for your "main" disability. The more people you have explaining your limitations and restrictions, and how your life has been adversely impacted by your illness, the stronger your claim becomes. You should get records and letters of support from your general practitioner, specialists (orthopedic surgeons, rheumatologists, neurologists, cardiologists, psychiatrists, etc.), chiropractors, acupuncturists, physical therapists and any other health professional who can weigh in on your ability to work.
- DO get written support of your former employer whenever possible. Other than your doctor, no one else is more qualified to say whether or not you can work. Obtain a copy of your personnel file. A history of good performance reviews, with the only negatives coming in the time immediately preceding the end of your employment, certainly shows the insurance company that something changed over time that is now causing your inability to work.
- DO use the decisions of other agencies paying you disability benefits. An approval by State Disability, Worker's Compensation, Social Security Disability, a disability retirement plan, CalPERS or any other source of disability related income is valuable evidence you can use to prove your inability to work.
- DO get written statements from people in your personal life. While they may not be medical experts, a spouse, other family member, close friend or former co-worker can all provide excellent insight into the struggles you face on a daily basis. The insurance company hires private investigators to attempt to catch you involved in activities you say you can't do. You can use the same tactic by having people from your personal life tell stories about the difficulties they've witnessed.
What you should NOT do when appealing your disability claim denial:
- DO NOT send in your appeal before reviewing your claim file and policy.
- DO NOT submit your appeal with just a letter written by yourself. You are not a medical expert! You want your doctors to do the heavy lifting, so make your appeal letter more of a cover letter, telling the insurance company why you disagree with their decision, and what information they will find in your appeal packet that will change their minds. In an ERISA governed policy, once a decision is made on your final appeal, your file is closed. Any information you leave out may never be heard or considered by a court!
- DO NOT rely on a generic job description provided by your employer or the insurance company. Being disabled is being unable to do the essential functions of your occupation, so if the job description the insurance company uses isn't a full and complete list of your actual duties, then your chance of getting your claim approved decreases dramatically.
- DO NOT ignore the side-effects of the treatment of your disabilities, and how those impact your ability to work. Very often, what you do to treat your condition(s) can have just as much of an effect on your ability to get through a workday as the disease/injury itself. Make sure you and your doctors mention any medications or treatments and what side-effects they have.
- DO NOT send your documents in by regular mail, and try and stay off the phone as much as possible. All communication should be in writing, in traceable forms such as certified mail, fax or e-mail. If you can't prove it, it never happened.
- DO NOT miss the deadline to appeal. In most cases, failure to appeal before the given deadline means you waive your right to pursue the claim any further. No appeal equals no lawsuit.
- DO NOT appeal on your own if you are not physically or mentally capable. You can hire experts, often on a contingency fee basis, which means you only pay if they obtain a benefit for you.