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  • Long Term Disability Guide

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

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    The Key To Hiring The Right Long Term Disability Attorney

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    The Smart Long Term Disability Guide For Preparing Your Statement and Field Visit

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  • Social Security Disability Guide

    Your Rights To Social Security Disability Benefits - Your Guide to Getting Benefits Now

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

The Two Reasons Why You Need To Appeal The Denial Of Your Erisa Disability Claims

If you have an ERISA disability policy and your claim has been denied there are two reasons why you should appeal the denial of your disability benefits within 180 days of the date of the denial.

appeal denial of ERISA disability claims

What Are The Two Reasons I Should Appeal My Denial of My ERISA Disability Claim?

1. The ERISA law requires a policy holder to “exhaust” their administrative remedies before filing a lawsuit. Your appeal is considered your “administrative remedy.” If you fail to timely appeal the insurance company may say that you can’t sue because you failed to exhaust your administrative remedies. Appealing preserves your right to sue your insurance company if they deny your claim again on appeal.

2. Your appeal is the last chance to submit medical, vocational and other relevant evidence of your disability to the insurance company. Before filing an appeal you should get an entire copy of the carriers file, and, if your smart, you should retain a disability attorney like Nancy Cavey.

Why You Should Have An Attorney Prepare Your Appeal If Your ERISA Disability Benefits Have Been paid.

Ms. Cavey does a comprehensive review of the denial letter and the Carrier’s file to determine all of the reasons why the Carrier improperly denied your claim. She’ll even develop the medical evidence necessary including submitting medical literature, have you undergo a functional capacity evaluation and even take the statement of your physician. It’s crucial that your appeal be thoroughly developed and documented because this is the last chance you’ll have to submit evidence if you have to file a lawsuit.

Under the ERISA statute the Court will decide your case entirely based on what was in the insurance companies claim file at the time of the final denial. In an ERISA case, you don’t get to testify nor do your doctors. The Judge only is able to perform a paper review of the case in making a decision whether to reverse the claims denial. If you don’t submit any new evidence, it’s more likely that a federal judge will uphold the denial.

What Should You Do If Your Claim Has Been Denied?

Its time for you to contact an experienced ERISA disability attorney. For a free 30 minute consultation like Nancy Cavey, who can help you get the disability benefits you deserve call (727)894-3188.

Do I Have To Cooperate During A Functional Capacity Evaluation In A Long Term Disability Claim?

FCE and IME disability long term disability

Disability policies generally require policy holders who apply for disability benefits to undergo an Independent Medical Evaluation or even a Functional Capacity Evaluation. If your policy allows for these and you’ve been requested to undergo such an examination, you have the duty to cooperate.

FCE and IME disability long term disability

What Happens if you Refuse to Perform Tasks Requested or Don’t try Hard Enough During the FCE?

Your claim can potentially be denied for “lack of cooperation.” In the case of Ortega-Candelaria v. Johnson & Johnson, 2014 WL 2696725 (1st Cir. June 16, 2014), Mr. Ortega-Candelaria applied for disability benefits and was asked to undergo a Functional Capacity Evaluation.

He refused to do lifting, carrying, pushing, pulling and climbing during the FCE and didn’t give his best efforts on tasks. Johnson & Johnson’s Plan discontinued his benefits, based on a lack of cooperation. The trial court ruled against him finding that the Plan terms required him to cooperate. Without such cooperation, Johnson & Johnson could legally reduce or terminate his benefits.

What Should I do if I’m Scheduled for an IME or an FCE?

You should immediately contact Long Term Disability attorney Nancy Cavey, who can explain to you your rights and obligations under your disability policy, what steps can be taken to safeguard the legitimacy of the evaluation, and how to be properly prepared for an IME or an FCE.

Remember, the IME or FCE is scheduled but for one purpose. That’s to deny your benefits! You need to protect yourself before your claim is denied. Call today at 727-894-3188.

Am I Entitled To Attorneys Fees At The Expense Of The Disability Carrier If They Paid Benefits After A Lawsuit Is Filed?

attorney fees long term disability carrier

If you purchased your disability policy through your employer, your policy is covered under the ERISA law. The disability carrier has the discretion to pay your benefits and, many times, will improperly deny legitimate disability claims. Sometimes filing a lawsuit is what it takes to get your benefits granted.

attorney fees long term disability carrier

What about Attorneys Fees?

In ERISA cases, a court may, in its discretion, award attorneys fees if the parties achieve “some degree of success on the merits.”

Is the Mere Filing of a Lawsuit After a Plaintiff Files an ERISA-governed Disability Benefit Claim Sufficient to win an Award of Attorneys Fees?

It depends on where you live In the case of Koloff v. MetLife Ins. Co., 2014 WL 3420990 (E. D. Cal. July 14, 2014), Koloff asked for disability benefits and filed a law suit. The court dismissed the case because Koloff had failed to exhaust administrative remedies by allowing the carrier, MetLife, to make a decision. The court held in Koloff that a claimant doesn’t satisfy the requirement of “some degree of success on the merits” by achieving a “trivial success on the merits” or a “purely procedural victory.”

How About the Argument that the Law Suit was the Catalyst for Payment?

There is some case law support for what’s called “catalyst theory” for seeking attorney fees. The facts have to demonstrate that the law suit was a catalyst or linked to the decision to approve benefits. That will require discovery on the part of your attorney. The filing of the law suit is the key to getting you your benefits.

How will I Learn More About my Rights to Disability Benefits?

You can contact Long Term Disability attorney Nancy Cavey, who can help you get the disability benefits you deserve, regardless of where you live in the United States. Call today at 727-894-3188 for more information.

What Every LTD Policy Holder Needs To Know About Overpayment Of Benefits

ltd policy overpayment benefits

Many long term disability policies have a policy provision that reduces the amount of long term disability benefits by “other income.” If a long term disability carrier begins making disability payments, they will offer the policy holder the option to:

1. Reduce the amount of disability benefits by an estimated amount of deductible benefits, or

2. Allow the policy holder to elect to receive full payments, without reduction, in exchange for an agreement to notify the carrier of the receipt of other income benefits and to repay any overpayment incurred, as a result of receiving other benefits.

ltd policy overpayment benefits

What Happens When the Policy Holder Ignores Their Agreement to Repay any Overpayment?

In the case of Unum Life Insurance Company v. Pawloski, 2014 WL 6686327, Mr. Pawloski learned the hard way what happens when he ignored the agreement he signed to repay Unum an overpayment.

Mr. Pawloski began receiving long term disability benefits and Workers’ Compensation benefits, which were defined as “other income” in the disability policy. Unum paid Mr. Pawloski unreduced benefits and, ultimately, he settled his Workers’ Compensation case.

Unum made a number of fruitless efforts to obtain the details of Mr. Pawloski’s Workers’ Compensation settlement. Unum, ultimately learned that he had settled his case for $150,000 with $70,000 set aside for Medicare. The settlement was backdated and covered the same period of time that Mr. Pawloski had received unreduced benefits from Unum.

Unum, also made repeated attempts to get Mr. Pawloski to repay the overpayment. After Mr. Pawloski failed to respond, Unum filed a law suit in federal court against Mr. Pawloski seeking payment of repayment of the overpayment, together with attorney’s fees.

Federal District Judge Honeywell noted that 29 U.S.C. §(a)(3) provided that a civil action could be brought by Unum “to obtain the appropriate equitable relief … to enforce … the terms of the plan.” The judge found that:

1. Unum was a fiduciary under the ERISA plan which was entitled to enforce the terms of its policy,

2. That the Workers’ Compensation settlement was a source of money that Unum was entitled to as a deductible source of income,

3. Mr. Pawloski agreed to reimburse Unum,

4. He neglected to repay, and

5. An equitable lien was created in the amount of the overpayment as soon as Mr. Pawloski received the Workers’ Compensation settlement.

Mr. Pawloski suggested, in his defense, that he had already used or spent the specific sum he received in his Workers’ Compensation settlement and, therefore, he was not obligated to repay Unum.

Judge Honeywell rejected that argument suggesting that to allow Mr. Pawloski to spend all the money he received, knowing he violated the terms of his contract, “set a dangerous precedent.”

As a result, Judge Honeywell ordered Mr. Pawloski to pay $49,187.58 back to Unum without interest.

The Lesson Learned!

The Federal judges will enforce the overpayment provisions of long term disability contracts. Get out your policy and determine what “other income” means, so that you can plan to repay the disability carrier if you receive other income benefits, like Social Security Disability benefits for you or your family, Workers’ Compensation benefits, or even a settlement of any personal injury claims.

What You Should do Today!

You can learn more about reimbursement issues by contacting Long Term Disability Reimbursement of Overpayment attorney Nancy Cavey at 727- 894-3188.

What Is Overpayment Of Long Term Disability Benefits?

overpayment long term disability benefits

Many long term disability policies will deduct from your disability benefits any money you might receive for:

• Social Security Disability benefits,
• Dependent benefits,
• Workers’ Compensation, or
• Proceeds of a third party settlement arising out of an accident.

Many policies will provide the policy holder to either receive the full amount of benefits and agree to reimburse the carrier, if and when they receive any “other income” benefits. The amount that is owed back to the insurance and disability carrier is known as an “overpayment.”

overpayment long term disability benefits

What are My Options to Avoid Creating an Overpayment?

Alternatively, disability insurance companies can offer you the option to receive your benefits with an estimated reduction of the amount of other income benefits you might receive. So, for example, if you’ve applied for Social Security Disability benefits, your long term disability carrier can estimate the receipt of your Social Security benefits and pay you reduced benefits, while you’re pursuing your Social Security claim.

Once you receive your Social Security award, the carrier will adjust your long term disability payment, accordingly. If the long term disability carrier has denied your Social Security benefits, you may not have to pay them back.

What You Should do About an Overpayment of Disability Insurance Benefits

Each case is different and you should call today at 727-894-3188 for a free, no obligation consultation or to order a copy of her book, “Robbed of Your Peace of Mind: Everything You Need to Know About Your Long Term Disability Claim.” by clicking the link!

Why Every Long Term Disability Policy Holder Should Hire Their Own Social Security Disability Attorney To Assist Them In Getting Social Security Disability Benefits

hiring a social security lawyer LTD claim

Most long term disability policies will pay full long term disability benefits, but subtract from those benefits other income benefits, such as Social Security Disability benefits.

hiring a social security lawyer LTD claim

The Games the Representative Company Plays with Long Term Disability

Often, the disability insurance company will recommend that you use a service they endorse to help you get the Social Security Disability benefits. While these companies will claim that they represent you, and not the long term disability carrier, the reality is that often these representative companies develop your social Security claim based on medical conditions that only have a limited payment period under the terms of your disability policy. For example, mental illness is used as the basis of your Social Security Disability claim. Many policies will only pay for 2 years of disability benefits based on the mental nervous limitations of the policy. While the long term disability carrier will tell you that they’ll pay the representative’s fee as an enticement, the reality is that the long term disability insurance company and their recommended referral source is simply not working for you.

What You Should do Today

You should contact a lawyer, like Nancy Cavey, who can help you get both Social Security Disability benefits and long term disability benefits. She’ll help develop the right medical condition so you get the maximum benefits possible. Call today at 727-894-3188.

The Four Reasons Long-Term Care Insurance Gets Overlooked In The Estate Planning Process

long term care attorney tampa

One of the most commonly overlooked areas in estate planning is deciding whether you should purchase long-term care insurance.

long term care attorney tampa

Four Reasons Why Long-Term Care Insurance Gets Forgotten

Long-term care insurance is the only way to prepare for the future and protect assets that you might want to pass on to your relatives or loved ones.

It can also protect you from being a burden on your family!

Did you know that over 60% of people over the age of 65 need some kind of long-term care in their life? Medicare simply doesn’t cover many of the long-term care services that are required. It’s important that you assess your risks and determine whether long-term care insurance is right for you. But, in the meantime, let’s think about the reasons why long-term care insurance gets forgotten:

• I’m too young to think about long-term care;
• I already have medical insurance which should be good enough, isn’t it?
• I don’t want the added expense of long-term care insurance; and
• I have enough money set aside for a nursing home or other long-term care service.

What Long-Term Care Insurance Does

Long-term care insurance can help with the cost of adult care or assisted living facilities or interim care when an individual has lost the ability to do two or more of their daily activities. These activities include:

Continence; and

There are medical conditions that can trigger the need for long-term care, even if an individual is still able to take care of their daily activities. A person with Alzheimer’s, for example, may need long-term care, even if they’re able to perform their daily activities. It is their mental incapacity that requires long-term care.

What You Should Do

Talk to long-term care attorney Nancy Cavey who will answer your questions about purchasing long-term care insurance, how to prepare a winning claim, and what to do if your claim for long term care is denied. Call her today at 727-894-3188.

Cognitive Dysfunction And Your Claim For Long Term Disability Benefits

Cognitive Dysfunction

Long term disability carriers don’t make it easy for those who are disabled to get the long term disability benefits that they deserve. Long term disability carriers deny claims on the basis of:

A. Lack of diagnostic criteria;

B. No clinical connection with disabling medical condition; and

C. No objective medical or self-reported symptoms and limitations.

Cognitive Dysfunction

Cognitive Dysfunction

Cognitive dysfunction is present in a number of medical conditions, including tinnitis, hearing loss, headaches and vertigo.

Cognitive dysfunction isn’t evidence of a disability but it’s an important factor to consider in determining the disability. Courts require that long term disability carriers give attention to subjective complaints, assign weight to those subjective complaints or provide specific reasons for its decisions to discount those subjective complaints.

Carriers simply can’t point to a lack of objective evidence in denying a claim. The carrier has to identify any objective findings and consider the cognitive symptoms that would reasonably be expected to see as a result of the medical condition. Carriers can’t just rely on the lack of objective evidence to deny a claim unless there is a subjective, self-reported symptoms and limitations clause in the policy.

What you should do if you have cognitive dysfunction

If you’re filing a long term disability claim as a result of cognitive dysfunction, you should obtain a copy of your medical records and review those records closely. Will your physician document the medical evidence for your cognitive dysfunction or clinical correlation between the complaints and your diagnosis? Has your physician performed any objective testing? Has your physician explained how your cognitive difficulties are manifestations of the symptoms of your medical condition? If not, you may claim may be denied right out of the box because of the lack of medical evidence that supports your cognitive dysfunction.

What should I do if I’ve been denied benefits as a result of cognitive disorder?

Contact Long Term Disability lawyer Nancy Cavey within 180 days of receipt of your denial letter so she can obtain the carrier’s file, conference with your doctor and obtain the necessary medical evidence to establish objective basis of your cognitive disorder and help you get the benefits you deserve. Contact her today at 727-894-3188.

What Every Erisa Plan Holder Needs To Know About Plan Amendments

erisa law lawyer disability tampa

If you employer offered you a disability policy, you may be covered by the Employer Retirement Income Security Act (ERISA). ERISA governs both pension benefit plans and long term disability benefits. ERISA long term disability plans are amended for one reason or another. Amendments can be classified into two categories, substantive and procedural.

Substantive and Procedural Plan Amendments

If a benefit is changing or ending, this would be considered to be a substantive. However, if only appeal procedures such as deadlines for submitting an appeal or for decision-makers to make the final decision on a claim, that’s probably a procedural amendment.

The general rule is that procedural amendments are generally not retroactive. However, substantive amendments will affect you if you’ve vested in your benefits.

How Plan Amendments Must Be Made

Plan sponsors have to follow the ERISA statute to make sure that the amendment has been made properly. The reality is the plan amendments can be made into effect whether it is good or bad.

Learn more about your policy

You can learn more about your disability policy by ordering a free, no obligation copy of our ERISA disability book , Robbed of Your Peace of Mind, today by visiting this link: to understand more about ERISA disability and your options.

Why Discovery Is Limited In Erisa Cases

discovery erisa disability limited

If you purchased a long term disability policy through your employer, your long term disability policy may be governed by the Employer Retirement Income Security Act (ERISA).

If you’re a long term disability policy holder whose benefits have been denied, you can challenge that denial in a federal court. However, you or your lawyer’s rights to conduct discovery and take the deposition of a claims adjuster, peer review doctors or others is generally limited.

discovery erisa disability limited

Why’s Discovery limited?

The fundamental goal of ERISA is to provide a “method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously.” Accord Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 815 (7th Cir. 2006). Consequently, discovery is often limited in an ERISA case. Discovery beyond the administrative record (the carrier’s file) is generally inappropriate depending on the court’s applicable standard of review.

What’s the standard of review?

A denial of ERISA benefits is reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Firestone Tire & Rubber Co. V. Bruch, 489 U.S. 101, 115 (1989).

However, when the challenged plan grants the administrator discretionary authority under the applicable standard of review is “arbitrary and capricious.” An administrator’s interpretation of the plan “won’t be disturbed” if reasonable. As a result, a long term disability carrier has the power to review the medical and come to its own determination as to entitlement to benefits.

That’s not good for you! What are examples of discretionary language? Some examples include the following:

“_______X_______carrier shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder. _______X______’s decisions regarding construction of the terms of this policy and benefit eligibility shall be conclusive and binding.”

Therefore, based on the language and controlling law, the federal court would have to apply the “arbitrary and capricious” standard of review which results in a limited review of the administrative record and even more limited ability to conduct discovery.

What should I do if my claim for disability benefits has been denied?

If your claim for disability benefits has been denied, please give us a call immediately to look over your denial. You may need a lawyer to get the disability benefits you deserve! 727-894-3188