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Category Archives: Blog - Page 2

Law Enforcement Agencies Don’t Have To Tell First Responders About The Statutory Presumption

first responders claims tampa

The 1st District Court of Appeal recently ruled that there is no requirement that an Employer/Carrier provide injured law enforcement officers information regarding the statutory presumption.

Officer Guevara was employed by the City of North Bay Village and was placed on light duty on March 15, 2007 after a physical revealed his blood pressure was elevated. His supervisor completed a Notice of Injury and the City of North Bay Village, through Florida Municipal Insurance Trust/Florida League of Cities, sent Officer Guevara an initial claim packet which included an informational brochure approved by the Department of Financial Services.

first responders claims tampa

The packet did not enclose any information about a statutory presumption for injuries sustained by law enforcement officers. Unfortunately, Officer Guevara filed his Petition for Benefits seeking Worker’s Compensation benefits late.

The employer/carrier denied the claim on the basis that the statute of limitations defense had run and the Judge disagreed finding that the packet was so generic that it didn’t provide any meaningful information to Officer Guevara about the statutory presumption of causation afforded law enforcement officers under Section 112.18(1).

However, the 1st District Court of Appeals reversed the decision finding that Employer/Carrier’s don’t have a statutory duty to provide injured law enforcement officers details regarding the statutory presumption of compensability on first responder cases.

If you are a first responder and need help with this issue, give us a call today. We may be able to help you with your situation.

How To Deal With Erisa Disability Insurers Claims And Reimbursement For Social Security Overpayments

overpayment ERISA disability lawyer

Many Long Term Disability plans provide that the policy holder must properly refund any lump sum retroactive Social Security Disability payment and send the overpayment amount within 30 days of the receipt of the notice from the Long Term Disability carrier. If you fail to make reimbursement, many carriers will claim reimbursement of the overpayment of disability benefits that occur due to your receipt of Social Security benefits pursuant to 29 U.S. Code Section 1132(a)(3).

In Great – West Life and Annuity Insurance Company v. Knudson, 534 U.S. 204(2002), United States Supreme Court addressed a carriers’ right to enforce a reimbursement provision in an ERISA plan.
In Knudson, the carrier paid Ms. Knudson’s medical expenses and then filed a law suit in state court to recover damages, as a result of her motor vehicle accident. The funds that were recovered in the tort action were paid into the Special Needs Trust and Great Life filed an action in court asking for reimbursement of the sums it had paid out on her behalf from the Special Needs Trust.

overpayment ERISA disability lawyer

The U.S. Supreme Court held that whether the carrier was entitled to reimbursement on a legal or equitable basis depended on the nature of the Plaintiff’s claim and the underlying remedies claimed. The court held that if restitution was equitable in nature, the Long Term Disability carrier’s action had to seek, not to impose personal liability on the policy holder, but to restore the funds or property in the policy holder’s possession. Because the monies had been placed in a Special Needs Trust, the court held that the monies were not in the policy holder’s possession.

The practical result of the Supreme Court opinion is that the carrier has to prove the amount that is due, establish that they’re entitled to reimbursement on an equitable basis and establish that the policy holder has the funds in their possession.

If these three things are not established then the carrier is generally, not entitled to reimbursement.

However, that doesn’t mean you’re off the hook. A Long Term Disability carrier can reduce your future benefits by the receipt of the overpayment and will, generally, reduce your benefits until they have received the full amount of the overpayment. The end result? Long Term Disability carriers get their money back one way or another.

What should I do if the carrier is claiming an overpayment?

Contact Overpayment Long Term Disability Benefits attorney Nancy Cavey today to learn more about whether the carrier is, in fact, entitled to reimbursement, strategies for dealing with the reimbursement claim and causes of action that may arise, as a result of collection activities on behalf of the carrier. If the carrier has hired a collection agency that’s harassing you regarding overpayment, there might be a Fair Debt Collection Practice Act (FDCPA) or state consumer violation that can help resolve the overpayment issue favorably for you!

Unemployment Benefits And Your Rights To Social Security Disability Benefits

unemployment social security disability benefits

The receipt of Unemployment Insurance benefits does not prevent you from getting Social Security Disability benefits.

In Cleveland v. Policy Management Systems Corp. 526 U.S. 795 (1999), the United States Supreme Court held, in a unanimous decision, that a claim for Social Security Disability benefits is consistent with a claim for relief under the Americans with Disabilities Act (ADA), even though there must be an ability to work in order to obtain relief under the ADA.

unemployment social security disability benefits

The United States Supreme Court held that under the presumptions embodied in the 5-Step Sequential Evaluation process, a person can qualify for Social Security Disability benefits even if they remain capable of performing some work.

In today’s economy it’s difficult to make ends meet when you’re unable to work and disabled. Many times individuals will apply for Unemployment Compensation benefits at the same time that they apply for Social Security Disability benefits.

The Social Security Administration has issued a Management Statement to the Administrative Law Judges (ALJs) reminding them that the receipt of Unemployment Compensation benefits does not preclude the receipt of Social Security Disability benefits. It is one of many factors the Administrative Law Judge must consider in determining whether a claimant is disabled and the underlying circumstances will be of importance.

For example, if you sought employment at jobs that had physical demands in excess of your alleged impairments, then that would be an important factor for the Administrative Law Judge.

The ALJ is to look at the totality of the circumstances in determining the significance of an Application for Unemployment and attempts to find employment.

If you have any questions regarding your eligibility for Social Security Disability benefits while applying or collecting Unemployment Compensation benefits, contact Tampa Bay Social Security Disability attorney Nancy Cavey who can help you get the Social Security Disability benefits you deserve.

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.

Musculoskeletal Connective Tissue Disorders Are The Leading Cause Of Social Security Disability Awards

Malignant Neoplastic Diseases

According to the Social Security annual statistical report on the Social Security program benefits were awarded to 960,260 disabled workers in 2012.

The most common impairment was musculoskeletal system and connective tissue diseases which represented 35.4% of all disability awards. Mental disorders comprised 18%, circulatory system 10.6%, neoplasms 9.5%, nervous system and sensory organs 8.0% and all other impairments 18.5%.

Malignant Neoplastic Diseases

The Social Security Administration doesn’t always make it easy for those who are disabled to get the Social Security disability benefits that they deserve.

If you suffer from a herniated disk or failed back surgery, you may be eligible for Social Security Disability benefits. Contact musculoskeletal impairment attorney, Nancy Cavey, today who can help you get the disability benefits you deserve. See the SSA’s listing on MALIGNANT NEOPLASTIC DISEASE.

Surviving Spouse Social Security Benefits For Same Sex Couples

social security disability same sex couple

The Social Security Administration (SSA) issued rules on December 16, 2003 authorizing the processing and payment of some surviving spouse lump sum death benefits for same sex married couples.

SSA has also begun to process claims for the spouses of retired workers, if the couple is married and domiciled in a state that recognizes same sex marriages.

social security disability same sex couple

There is the question of what happens if the couple was married in the state that recognizes same sex marriage but the wage earner lived in a state that didn’t recognize same sex marriage. We’ll keep you advised once the Social Security Administration addresses this issue. See the SSA information about BENEFITS FOR SURVIVING SPOUSES AND LUMP SUM DEATH PAYMENT.

If you or a loved one needed more information about this specific issue, please give us a call today to discuss your options for your Social Security disability benefits at 727-894-3188.

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!