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    Robbed of Your Peace of Mind? Your Guide to Long Term Disability Benefits

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Category Archives: Long Term Disability ERISA and Private Disability Insurance Claims

How Do Long Term Disability Carriers Use Position Statements To Deny Fibromyalgia Claims?

long term disability carriers position

Many long term disability carriers are in the business of collecting premiums and not paying benefits to fibromyalgia policy holders. Many long term disability carriers will deny fibromyalgia claims on the basis that fibromyalgia is largely based on self reported symptoms and that there isn’t any objective evidence of restrictions and limitations.

long term disability carriers position

It’s not uncommon to see a denial letter language that describes fibromyalgia syndrome as a functional somatic syndrome. The denial language will say that FMS sufferers symptoms are “exacerbated by a self-perpetuating, self-validating cycle in which common, endemic, somatic symptoms are incorrectly attributed to serious abnormality, reinforcing the patient’s belief that they have a serious disease.” Barsky A. Borus J: Functional Somatic Syndromes (review). Ann Intern Med. 1999: 130:910-921.

Further, the long term disability companies will cite to an outdated study in the Journal of Rheumatology of 1996 called the “FMS Consensus Report.” The outdated report concludes that “only a minority of FMS patients are unable to work.”

Long term disability carriers use this study to justify claims denials on the basis that “at a minimum, FMS claimants should be able to perform sedentary or light work.”

If your claim for long term disability benefits has been denied, contact fibromyalgia long term disability attorney, Nancy Cavey, at 727-894-3188 who can help you get the benefits you deserve no matter where you live in the United States.

Are There Disability Plans That Are Not Governed By The Erisa Statute?

erisa disability plans

The Employer Retirement Income Security Act of 1974 governs employee welfare benefit plans, including disability insurance plans.

erisa disability plans

ERISA is not a plaintiff friendly statute and, fortunately, there are plans that are not governed by ERISA. These include plans by:

• Churches;
• Government;
• Entities;
• Plans maintained for the purposes of complying with Workers’ Compensation; and
• Plans maintained outside the United States for the benefit of persons for non-resident aliens.

The great news is that if you’re employed by a government agency such as state or a local government, your long term disability benefits are not governed by the ERISA statute.

You can learn more about your rights to short and long term disability benefits by contacting governmental plan disability attorney, Nancy Cavey, who can help you regardless of where you live in the United States.

How Can I Obtain A Copy Of My Disability Documents?

disability documents

Your employer should be able to provide you with a copy of the summary plan of description (SPD) which provides you with a description of the benefits that you may be entitled to as a result of disability, the definition of disability and how to make a claim for benefits.

disability documents

You can also request relevant documents from the plan under a 29CFR Section 2560.503-1(N)(8) if your benefits have been denied. Long term disability carriers are required to provide you with a copy of documents to:

• Rely on in making the benefit determination;
• Submit, proceed or generate in the course of making a benefit determination, regardless of whether relied upon;
• Demonstrates compliance with administrative procedures in making benefit
determinations in accordance with the plan documents; and
• In a case of denied disability benefits, constitutes a statement of policy concerning the denied treatment, regardless of whether relied on in making the benefit determination.

If you’re thinking about applying for disability benefits or your claim has been denied, you should obtain these important documents to learn about your rights.

If you have questions about the disability claims process or your claim is wrongfully denied, long term disability attorney, Nancy Cavey, can help you get the disability benefits you deserve. Call her today at 727-894-3188.

Why The Definition Of Disability In Your Long Term Disability Policy Is So Important

definition of disability

Long term disability carriers don’t make it easy for those who have disability policies get the benefits that they deserve. There are many important provisions in your disability policy including the definition of disability, duties and regular occupation. You should read your policy closely before you apply for disability benefits so you understand these crucial terms.

definition of disability

The definition of disability

The definition of disability will determine the scope of the coverage provided by your disability carrier. Normally, the policy provides for disability payments if you’re unable to engage in your “own occupation” which is usually the first 24 months of disability. After 24 months, the definition of disability will change to “any occupation.” You should note that your disability policy does not ensure your job but rather, ensures your occupation.

Variations in the definition of disability

Many disability policies will define disability on the actions or skills required of your regular occupation. The variations include:

• The ability to perform each of the material duties of the regular occupation;
• The ability to perform the important duties of the occupation; or
• The ability to perform the substantial material duties of the occupation.

That’s why it’s so very important for you to obtain a description of your occupational duties from your employer and compare that to the duties that you know you actually perform. Many times long term disability carriers will use the wrong definition of occupation and/or the duties of the occupation in wrongfully denying claims.

THE DEFINITION OF REGULAR OCCUPATION

Unfortunately, many long term disability policy holders believe that they have insured their occupation as performed by their employer. Unfortunately, that may not be the case. Many long term disability policies will define material and substantial duties based on the regular occupation as performed in the national economy and as defined by the Dictionary of Occupational Titles. Rarely, does a policy provide that the definition of a regular occupation is that occupation performed by the policy holder for a specific employer at a specific location.

What you need to do before you file a claim for benefits

It’s crucial that you understand the definition of the regular occupation and disability before you apply for disability benefits. Crucial mistakes can be made in the application and in your medical records if your physician doesn’t understand what your occupation involves and document how you are able to perform duties of your regular occupation. It requires teamwork to submit a winning disability application.

You can learn more about your rights to long term disability benefits and how to complete a winning disability application by contacting long term disability attorney, Nancy Cavey, who can help you regardless of where you live in the United States.

Help! My Claim For Long Term Disability Benefits Has Been Denied

disability help long term disability

If your disability benefits are covered under a group disability policy through your employer, your claim is probably governed by the ERISA statute. If your claim has been denied, the ERISA statute provides that you must file a claim within 180 days of the denial or you won’t be able to file. If you don’t file it timely and then try to file a lawsuit, the disability carrier will claim that you haven’t “exhausted” your remedies.

disability help long term disability

Filing multiple appeals

Many long term disability policies will also provide for a second level appeal to allow you to once again challenge the disability carrier’s denial. The deadline is often shorter than the 180 days provided for the first level appeal. You are required to exhaust all mandatory internal appeals before you can file suit.

Why should you appeal the denial?

The ERISA statute requires that you “exhaust” all mandatory internal appeals before you file a lawsuit. If you don’t, your suit will be dismissed. By the time the case is remanded., the appeal deadline may have expired. It’s a double whammy for the unexpected.

Do I need a lawyer?

Yes! The ERISA statute is a complex federal law with precise regulations. Most attorneys just don’t have the knowledge or experience to properly handle an ERISA governed long term disability appeal or lawsuit. Unfortunately, many general practice attorneys will miss deadlines or fail to address critical issues on appeal or worse yet, not submit all the winning documentation as part of the appeal process. Unfortunately, unrepresented claimants often make the same fatal mistakes.

When should I hire a lawyer?

Let’s be frank! A claim for long term disability insurance benefits is won or lost at the appeal stage because, simply speaking, there is no trial in an ERISA case. Once the internal appeals have been exhausted and a lawsuit is filed, no new evidence can be introduced. There are no trials, there is no hearing, there is not deposition. A federal Judge simply reviews the claims file. Holding your best evidence is just using strategy.

If your claim for long term disability benefits has been denied, call long term disability attorney, Nancy Cavey, today to learn more about filing an appeal within a 180 day deadline. Don’t delay! Time is your enemy!

What Is Erisa And Why Should I Care That My Long Term Disability Carrier Might Be Governed By Erisa?

erisa lawyer disability tampa st petersburg

What you need to know about the claim forms

ERISA is shorthand for the Employer Retirement Income Security Act of 1994. It’s Federal legislation that governs how insurance companies handle disability claims and it gives disability carriers a “get out of jail free card.”

In most ERISA governed claims, a court can only overturn the long term disability carrier’s decision if you prove that the denial was “arbitrary and capricious.” That’s the highest burden of proof in a civil court and it’s the “get out of jail free card” that disability insurance companies, like UNUM Provident, MetLife, Cigna/LINA, Aetna, Lincoln Financial, Prudential and The Hartford use to “play hardball.”

erisa lawyer disability tampa st petersburg

Claims denial and appeal

If your long term disability claim has been denied or terminated, the ERISA rules provide that you’ll have 180 days in which to file an appeal. You should request a copy of your complete file from the long term disability carrier and hire an experienced long term disability attorney to represent you in the appeals process.

Once the appeal letter is submitted under the ERISA statute, the long term disability carrier will have 90 days in which to review the material and decide whether it’s going to overturn or uphold the denial.

Filing the law suit

Once the internal appeals process is exhausted, you’ll have the right to file a lawsuit in Federal court. However, no additional evidence can be submitted. The Judge is limited to reviewing the claims file. There are no depositions, hearings or even trials. That means that neither you or your treating physician is going to be able to testify.

The court will simply review the medical and vocational proof in the claims file. The appeals letter is, quite frankly, your trial and that’s why it’s crucial that you have an experienced disability attorney represent you in the appeals process.

How the Federal Judge makes a decision in an ERISA case

In most ERISA governed cases, the Federal court must defer to the long term disability decision so long as there is a “rational basis” or a “reasoned explanation for the decision.”

The Federal court will only overturn the insurance company’s denial, if you can show the denial is “arbitrary and capricious.” Even if you’ve been accepted as being disabled by the Social Security Administration, the long term disability carrier isn’t bound by that determination. The discretionary clause in the disability insurance company is their “get out of jail free card.”

When you file a lawsuit the best you can hope for is to recover the past due benefits that you are owned and have your monthly disability check reinstated. Unfortunately, there are no bad faith or punitive damages and attorney fees are rarely awarded. Most cases settle for 10% to 50% of the past and future value of your benefits.

What you should do today

Let’s be frank. Long term disability insurance claims are complicated. There are short deadlines and the appeal is your trial. There are a number of legal issues in many appeals including limitations, benefits due to mental illness or self reported conditions, exclusions for pre-existing conditions and even arguments about overpayments or reduction of benefits.

You would owe it to yourself to get help with your long term disability claim, appeal or lawsuit regardless of whether or not your long term disability policy is a group sponsored long term disability plan or an individual disability income policy.

Contact long term disability attorney, Nancy Cavey, who has helped hundreds of people with the long term disability insurance. She’ll personally consult with you, review your claim, prepare your appeal, and if necessary, file suit and represent you in court.

Call today at 727-894-3188 for a free no obligation consultation or to order a copy of her book, “Everything You Need to Know About Your Long Term Disability Claim.”

How Long Term Disability Carriers Will Use Functional Capacity Evaluations To Deny Your Claim

long term disability insurance claims

Long term disability carriers play hardball on claims and one of the ways they play hardball is to have you undergo a functional capacity evaluation. Why? If the long term disability carrier can show that you’re capable of engaging at least sedentary work, they will have legitimate grounds to deny your claim for disability benefits, notwithstanding what your physician has said about your restrictions and limitations.

long term disability insurance claims

What is a functional capacity evaluation?

It’s a 3 to 5 hour confidence evaluation used to determine your current ability, strength endurance, sensation, hand function and gross and fine motor coordination. They will evaluation the appropriateness of your physical limitations assigned by your physician and will test the consistency of your effort.

It is not uncommon to be performed by an insurance company and can be performed when the disability company thinks that your doctor is only relying on your subjective complaints.

What should I do if I am scheduled for a functional capacity evaluation?

You should immediately get out your policy and contact a long term disability attorney, such as Nancy Cavey, who has represented disability claimants in claims against UNUM Provident, MetLife, Cigna/________, Aetna, Lincoln Financial, Prudential and The Hartford. She’ll first determine whether the long term disability carrier has the right to a functional capacity evaluation. Many long term disability policies don’t provide the carrier with that right yet, improperly request the same.

If the carrier does have a right to a functional capacity evaluation you should be prepared for what will occur during the functional capacity evaluation including the questions that you’ll be asked, tests that you’ll be asked to perform and the hidden traps waiting for you in the functional capacity evaluation. Of course, the functional capacity evaluation should be videotaped. It might also be helpful to secure your own functional capacity evaluation or have an appointment with your physician the day of or the day after the functional capacity evaluation so your physician is in a position to rebut the findings of the functional capacity evaluation. Next, don’t let an improper functional capacity evaluation result in the denial of your long term disability claim.

Need Help With Your Long Term Disability Insurance Claim?

Long term disability attorney, Nancy Cavey, is familiar with the many methods disability insurance companies use to wrongfully deny or terminate legitimate long term disability insurance claims.

She’s helped hundreds of people secure their long term disability benefits and will personally consult with you, review your claim, prepare your appeal, and if necessary, file suit and represent you in court. Call today at 727-894-3188 for your free initial consultation so you can discuss your situation and get your questions answered today.

What Are The Five Reasons Disability Insurance Companies Wrongfully Deny Or Terminate Long Term Disability Benefits?

5 reasons long term disability

If you purchased your disability policy through your employer the policy is most likely governed by the ERISA statute. The Employer Retirement Income Security Action (ERISA) of 1994 is Federal legislation that has given a “get of jail free card” to disability insurance companies.

5 reasons long term disability

In most ERISA governed claims, courts will only overturn the insurance company’s decision if you can prove that denial was “arbitrary and capricious.” That’s the highest burden of proof in a civil case and it allows insurance companies to “play hardball” on claims.

The most common reasons that long term disability carriers wrongfully deny or terminate benefits are:

1. Insufficient medical proof;
2. Reliance on functional capacity evaluations or independent medical evaluations;
3. Medical reviews by a nurse;
4. Peer reviews that rely on “independent physicians”; and
5. Transferable skills analysis.

1. Insufficient medical proof

Many long term disability policies require that you send proof that’s acceptable to the carrier for their review and consideration. Unfortunately, many long term disability carriers play ping pong and no matter how much you send them, it’s never enough.

2. Functional capacity evaluations or independent medical evaluations

Your policy probably provides that the carrier is entitled to an independent medical evaluation. If you are scheduled for an IME, you should immediately retain the services of an attorney to represent you to ensure that you are protected during the independent medical evaluation.

Some long term disability carriers will also schedule a functional capacity evaluation which is an evaluation to determine your physical capabilities. However, not all policies provide that the carrier has a right to a functional capacity evaluation!

Unfortunately, FCE providers are also in the pocket of the long term disability carriers and will routinely opine that you’re capable of engaging in at least sedentary work so the long term disability carrier can terminate your benefits.
3. Medical review by a nurse

Long term disability carriers have nurses on staff who will summarize your medical records and mysteriously, conclude that the medical records don’t support your diagnosis, disability or inability to return to your own occupation or that of any occupation.

4. Peer review by physicians

It’s tough for a physician these days. Many physician have supplemented their income by doing “paper reviews.” They’re hired by a peer review company for the purposes of reviewing medical records, which have been summarized by the nurse and determining (a) whether there is any objective basis of your diagnosis, (b) any objective basis for the restrictions and limitations assigned by your physician, and © give their opinion on your ability to work.

It’s rare to find a peer review physician who will give an honest opinion because, quite frankly, their income is dependent on giving the peer review company and often the long term disability carrier the ammunition to deny your claim for benefits.

5. Transferable skills analysis

Long term disability carriers also have in their employ vocational evaluators. These evaluators will often review the job description of your occupation and will either misclassify that application or opine that you’ve learned skills in that occupation that you could take to other occupations. That is called a transferable skills analysis.

Many times transferable skills analysis provide jobs that you can’t do because of non-exertional problems, such as pain or side effects of medication. Worse yet, transferable skills analysis will list jobs that you might be able to do, but simply don’t exist.

What you should do immediately

If you claim for long term disability benefits has been denied, contact long term disability attorney, Nancy Cavey, who represents clients throughout the United States. She’ll review your claim, prepare your appeal and, if necessary, file suit and represent you in Federal court.

She has litigated disability cases against every major disability insurance company in the United States and knows first hand the methods long term disability carriers will use to wrongfully deny or terminate legitimate claims.

Call today at 727-894-3188 for free initial consultation.

How Developing Your Exertional and Non-exertional Limitations Can Help You Win Your Long Term Disability Claim

non exertional limitations

Many long term disability carriers will deny policyholder’s claims on the basis that there isn’t an objective basis for any physical restrictions and limitations and/or there is no causal relationship between those restrictions and limitations and your inability to your own occupation or any occupation.

It’s crucial that you develop both the exertional and non-exertional limitations that affect your ability to your own or any occupation.

Exertional limitations for Long Term Disability Claims

Exertional limitations affect your ability to do the physical demands of the job. Most exertional limitations are strength related and they affect your ability to:

• Sit;
• Stand;

• Walk;
• Lift;
• Carry;
• Push; and
• Pull.

The long term disability carrier will use your exertional limitations to categorize your residual functional capacity using the Dictionary of Occupational Titles and Definitions for work levels:

• Sedentary;
• Light;
• Medium;
• Heavy; or
• Heavy work.

If your physician says that you are capable of doing sedentary work, the long term disability carrier will immediately deny your benefits.

If you can’t carry more than 10 pounds on a regular basis or never lift more than 20 pounds, you will have a residual functional capacity for light work. If you can do light work, you can do sedentary work. That means you’ll lose your claim for long term disability benefits.

Non-exertional limitations for Long Term Disability Claims

Many long term disability carriers ignore non-exertional limitations that affect your ability to do non-strength work related work activities.

Examples of non-exertional limitations include difficulty doing the following tasks:

• Manipulative restrictions and limitations.

If you have difficulty using your fingers or hands to manipulate, reach or handle objects, you `have manipulative restrictions and limitations that can limit your ability to engage in repetitive activities with your hands.

• Postural restrictions.

If your doctor has restricted your stooping, climbing, crawling or crouching, those postural restrictions and limitations can also erode your ability to do sedentary work.

• Visual and communicative restrictions.

If you have difficulty seeing, speaking or hearing as a result of your disabling medical condition, you’ll have visual and communicative restrictions that will limit your ability to do sedentary work.

• Psychological limitations.

You may have difficulty functioning because of nervousness, anxiety or depression. You may have difficulty paying attention and concentrating or understanding and remembering detailed instructions. These psychiatric restrictions and limitations can reduce your ability to do sedentary work.

Non-exertional limitations can also be caused by pain or side effects of medication. If you or a loved one needs help with a Long Term Disability claim, please don’t wait to contact us today. Often waiting to file for long term disability can prolong the process. Call 727-894-3188 today.

Your Plan for Long Term Disability Benefits and a Functional Capacity Evaluation

functional capacity evaluation disability

One of the best ways to establish your functional restrictions and limitations is a functional capacity evaluation. However, all to often, long term disability carriers use functional capacity evaluations as a basis to deny claims.

functional capacity evaluation disability

Many long term disability carriers will deny claims on the basis there is no objective basis for the physical restrictions and limitations assigned by your physician. The long term disability carrier will request a functional capacity evaluation to determine the validity of your subjective complaints and prove you can work.

What is a functional capacity evaluation?

A functional capacity evaluation is a 3 to 5 hour comprehensive evaluation used to determine your current physical ability to sit, stand, walk, lift and carry. Your mobility, strength, endurance, sensation, hand function and gross/fine motor coordination will also be evaluated. Part of the testing will determine your consistency of effort and, long term disability carriers can deny claims on the basis that you failed to give full effort during the course of the functional capacity evaluation.

Test for malingering During The Functional Capacity Evaluation

The functional capacity evaluator will perform a Waddell’s test. The Waddell’s test is a group of signs that are part of a physical examination and are divided into 5 groups:

1. Regional disturbance;
2. Distraction;
3. Simulation;
4. Tenderness; and
5. Overreaction.

For example, in the simulation test the evaluator will press down on your head. If you complain of back pain while the functional capacity examiner is pressing down on your neck, that’s a sign of a non-organic response. If you have 3 or more positive signs on the Waddell’s testing, it’s positive for symptom magnification. The long term disability carrier will accuse you of exaggerating your symptoms.

The functional capacity evaluator will also be looking for inappropriate description of symptoms which can include:

• Whole leg pain;
• Whole leg numbness;
• Whole leg giving out;
• Tailbone pain; and
• The failure of medical treatment and no pain free periods.

Psychometrics testing in the FCE

You may be given a battery of psychometric testing to assess your perceived pain and disability. The lack of consistent findings can suggest a non-organic influence that has more to do with illness behavior than physical disease. The testing can include:

• Ransford pain drawing;
• Numeric pain rating scale;
• McGill pain questionnaire;
• Dallas pain rating questionnaire;
• Waddell’s testing; and
• Oswestry pain questionnaire.

As a long term disability attorney, I seriously question whether the psychometric testing is a legitimate part of a functional capacity evaluation and would suggest that you refuse to take any psychometric testing. You should, fully, otherwise cooperate with the functional capacity evaluation.

Getting the long term disability benefits you deserve

If you’ve been scheduled for a functional capacity evaluation, you are, most likely, being set up for a claims denial.

You should first check your policy to see if whether or not the long term disability carrier even has the right to a functional capacity evaluation. If the policy doesn’t allow for the functional capacity evaluation, I would strongly recommend that before going you consult with a long term disability attorney and see if they agree with you. You shouldn’t subject yourself to testing that is not permitted under the long term disability policy.

If you’ve been scheduled for a functional capacity evaluation, it’s time to contact long term disability attorney, Nancy Cavey, who will help determine the best course of action for you.

Contact her today at 727-894-3188 for a no obligation consultation about your rights to long term disability benefits.