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disability faqs

Disability FAQ's

“Ask a Disability Lawyer” is a new component of uqur.com! Send your questions to mquiat@uqur.com. If you have a question which was not answered below to your satisfaction or you would like more information, contact Mike Quiat or call him toll-free at (800) 797-5575.

Disability Insurance Claims

Q

Problems in Proving Your Inability to Obtain a Gainful Occupation

gainful occupationIf you have a medical condition that is so debilitating that you are unable to work in your current occupation or cannot obtain other gainful occupation, you should be entitled to long-term disability benefits. But you must first meet the definition of “disability.”

How Do Long-Term Disability Policies Define “Disability”?

Long-term disability (LTD) policies usually define “disability” in one of two ways:

  • “Own Occupation” – Under this policy, you are considered “disabled” if you have a medical condition that inhibits your ability to perform the duties of your own occupation.   If you meet this requirement, you are entitled to benefits.
  • “Any Occupation” – Under this narrower policy, you are considered “disabled” if you cannot work in any gainful occupation that you are reasonably suited for, taking into consideration your education, training and experience. Thus, if you are capable in working in any gainful occupation but not your own, your claim for LTD benefits will be denied.

Often times many LTD “own occupation” policies shift to the “any occupation” standard after a certain length of time, usually 24 months. The question then becomes: What is “gainful occupation?”

What Is Considered “Gainful Occupation?”

Generally, an occupation is considered “gainful” if it pays you 60 to 80 percent, (depending on your policy) of your pre-disability earnings. Thus, before the SSA denies you disability benefits or terminates your disability benefits under the “any occupation” policy, your insurance company must first show that considering your education and vocational history, you can reasonably perform some sort of job that would pay you at least 60-80% of your pre-disability wages.

For example, if a surgeon were diagnosed with Parkinson’s disease, causing tremors of her hands, she would most likely be found disabled under the “own occupation” policy. This is because her job requires the use of fine motor skills. However, whether she qualifies under “any occupation” is more difficult to determine since it depends on her prior salary, ability to perform other jobs, and the amount she anticipates earning at those jobs. If her pre-disability earnings were $300,000 per year, then her insurance company must show she could reasonably earn $180,000 per year (60% of $300,000) in another job before they could deny her claim.

What Is “Reasonably Suited?”

Based upon your education, location, skills and limitations, you must be reasonably suited to perform a gainful occupation. “Reasonably” is a broad definition, but some factors that make an occupation “unreasonable” are:

  • Within a reasonable commute of your home, few or no positions exist within that occupation.
  • You are under-qualified to perform the job because you lack the necessary skills or education. Although you cannot reasonably perform a job you are under-qualified for, it would not be unreasonable for you to perform a job you are overqualified for.
  • The employment position does not permit you to attend your regular medical appointments.
  • Your physician has not released you to perform the tasks required for the job.

So in order for the insurance company to accurately assess the type of jobs you could perform, if any, you should submit as much favorable medical evidence as you can. This includes your doctor’s opinion discussing your limitations and restrictions.

Who Decides Whether You Can Work at Another Occupation?

Vocational experts (VE) are used to establish whether you could perform “other jobs” and the compensation associated with those jobs. They are versed in the specifics of the labor market and often experienced in placing individuals with disabilities in occupations. The LTD insurer’s VE’s source of information supporting their opinions includes information from the Bureau of Labor Statistics, surveys of employers, and the (outdated) Dictionary of Occupational Titles.

As with other kinds of experts, VEs often disagree with each other. Usually, the LTD insurer’s VEs are biased towards opining that a disability applicant can obtain gainful employment. Many VEs retained by LTD attorneys, on the other hand, are biased towards the applicant being unable to obtain gainful employment.

Although a VE’s testimony and opinion may be critical in determining whether you could obtain a gainful occupation, and therefore whether you are eligible for benefits, ultimately the LTD insurer’s claims or plan administrator will make the final decision of whether your benefits are approved or denied. Even though many claim or plan administrators likely place more weight on the insurer’s VE and deny you benefits, favorable VE evidence in the administrative record is crucial for your appeal, especially if you later decide to file a lawsuit in federal court.

Contact a Long-Term Disability Lawyer

Speak to a long-term disability lawyer at Uscher, Quiat, Uscher & Russo, P.C. We will review your LTD policy to determine which disability definition your policy falls under. We can also evaluate your claim to determine whether you could obtain a “gainful occupation” that is reasonable in your situation. If not, we can help you compile medical and expert evidence supporting your disability claim.

Q

Evidence to Support Your ERISA Disability Claim

 

Filing for ERISA Disability Claim

Filing a ERISA Disability claim under an ERISA (Employee Retirement Income Security Act of 1974)-qualified policy can be complicated. Although every employer provided long term disability plan must comply with ERISA, the law allows a wide range of flexibility in participant requirements. (An employee insured by an ERISA policy is called a “plan participant.”) To collect any compensation from your policy, you will need to provide significant evidence to support your ERISA disability claim. Your insurance company may deny your claim if you do not provide enough evidence.

In order to quickly and efficiently deal with an ERISA disability claim, you should contact an experienced disability attorney. Our lawyers at Uscher, Quiat, Uscher & Russo, P.C. will guide you through the complex process and help you collect the evidence necessary to have your claim successfully processed.

What Do You Have To Prove?

Although every ERISA disability insurance policy is slightly different, you must prove to any insurance company that you are disabled. You must be able to prove all of the following with objective evidence:

  • The date you became disabled.
  • The last date you worked (LDW).
  • You have a medical condition that results in disability.
  • You are unable to perform duties of your job.

You must show each of these elements with objective proof. Objective proof is based on facts, observation, and measurement. This is different than subjective proof, such as a personal description of your symptoms. Although you will be required to tell your doctor about your subjective symptoms, the insurance company is primarily interested in objective tests and other evidence.

Proving Disability Date and Last Date Worked

Your doctor and employer should keep records of relevant dates; however, it is your responsibility to obtain those records for the insurance company. You can prove the onset of your disability by providing doctor’s office notes indicating a specific date at which your doctor concluded that your condition became so severe that you could no longer work. If you do not have such specific records, you may have to prove with other objective evidence that you were unable to work as of a certain date.

The last date you worked will be recorded by your employer. You may have access to those records through your human resources department or through your immediate supervisor. If the date does not match your onset of disability date, you may have to provide additional evidence to your insurance company regarding why your last date worked differs.

Medical Evidence

To prove the date you became disabled and the medical conditions that resulted in disability, you must have objective medical evidence. Every insurance company will evaluate that evidence differently; however, there are some generally accepted tests and observable factual evidence that are universally accepted.

In general, any of the following are accepted as objective medical evidence:

  • Radiological tests (x-rays, CAT scans, MRIs).
  • Nerve conduction tests.
  • Blood tests and other laboratory analyses.
  • Biopsies.
  • Psychological tests conducted by licensed psychologists and psychiatrists.

Often, office notes from doctors are not sufficient objective medical evidence. Doctors document your subjective complaints and take those into account to treat you. However, your insurance company will not consider subjective evidence or medical evidence that is based on subjective complaints. You must have a record of objective evidence in order to prove that you are disabled.

If you do not have enough objective medical evidence, your insurance company may deny your claim or send you to another doctor. If you are sent to another doctor for an independent medical evaluation (IME), you must be completely honest about your conditions. The doctor will likely conduct several tests and collect subjective data as well. The doctor will evaluate whether he or she thinks you are malingering, or exaggerating your conditions. The IME performed by the doctor will provide some of the most influential medical evidence to your insurance company, so it is essential that you attend and participate fully in the evaluation.

Vocational Evidence

In order to prove your last date worked and that you are unable to perform job duties, you must provide your insurance company with vocational evidence. Vocational evidence may be obtained from your employer, industry standards, witness statements, and doctors. Your employer can easily provide information regarding your last date worked and a description of your job duties. Once those duties are established, it is your responsibility to prove that you are unable to perform them. If the duties provided by your employer are not complete, you may need to supplement your actual job description with industry standards.

Your doctor can provide an assessment of your functional capacity in order to show that you are unable to perform your job duties. Some of the objective medical tests that your doctor performs can be utilized to show that you are incapable of performing job duties. However, your doctor may also complete a functional capacity evaluation form, which can be provided by your insurance company, to fully describe your abilities an inabilities.

Contact an Experienced Disability Attorney for Help Today

Whether you are just beginning your ERISA disability application or you’ve been denied, you have a long road ahead of you. Not only do you have to make an initial proof of disability, but you must also provide information on a continuous basis. Let us help you navigate the complex process of applying for or appealing an ERISA disability claim. Call one of our experienced disability attorneys at Uscher, Quiat, Uscher & Russo, P.C. today at 1-800-797-5575.

Q

FAQs Regarding ERISA Disability Plans

 

disability doctorMany people associate ERISA with retirement plans but it also applies to other employer-provided benefits, including your employer-provided life and health group disability insurance.  Here disability lawyers in NJ answer some of your frequently asked questions regarding ERISA disability life and health insurance.

 

  1. What is ERISA?

The Employee Retirement Income Security Act of 1974, or ERISA, is a complicated federal law governing benefits offered by private employers.  ERISA establishes minimum standards for retirement, health, life insurance, disability insurance, and other employee welfare benefit plans.  ERISA does not require employers to provide benefit plans, but sets standards for those private employers who do.

 

ERISA does not govern independently purchased retirement or insurance plans.  Nor does it apply to employee benefit plans offered to government employees (local, state or federal), or the employees of churches or other religious entities.

 

  1. What is an ERISA Disability Plan?

ERISA disability life and health insurance policies, are referred to as “plans.” An employee insured by an ERISA disability life or health insurance plan is referred to as a plan “participant” or “beneficiary.”

 

  1. How can I find out what benefits my ERISA disability plans provides?

You can refer to your Summary Plan Description (SPD), which ERISA requires your plan administer to give you.  The SPD will detail:

  • How your plan works.
  • What benefits your plan provides.
  • What you must do to qualify for benefits.
  • How benefits are calculated.
  • How to submit a claim.
  • How to appeal if your claim is denied.
  • Reasons why your benefits could be forfeited or reduced.

In addition to the SPD, you may also have received a booklet describing the procedures for submitting a claim in detail.

You may submit a written request to the plan administrator for a copy of the SPD if you do not already have one.  You should keep a record of all communications you have with the plan administrator.

Although SPDs are important, employees must look to the underlying insurance plan or policy itself.  If there is a conflict between the SPD and the plan or policy, it is the plan or policy which will control.

 

  1. If I make a claim, who decides if I am disabled?

ERISA plan administrators and claim administrators are typically large insurance companies, are in charge of ERISA insurance plans.  They decide whether a participant is disabled and entitled to receive benefits.  Thus, when you seek disability insurance benefits under your employer-provided policy, you must file your claim with the claim administrator.  The claim administrator will review your submission and supporting evidence, and then determine whether you qualify for benefits.  If you are denied benefits and you file an appeal, the claim administrator will review your appeal and, again, determine whether you qualify for benefits.

 

  1. How do I file an ERISA disability claim?

Review your plan, policy, SPD or the booklet that you may have received with it to learn about the claims procedure.  Their documents explain who is eligible for disability benefits and what standards must be met to receive benefits. They also describe the time limits for making a claim, the information that should accompany the claim, and the address to which the claim materials should be sent.

Consider getting a disability attorney involved from the very beginning before you file your claim and even before you stop working.  It is crucial that you meet the deadlines and provide all information requested by the plan administrator.  An attorney can collaborate with your treating physicians to ensure that your claim is well supported by medical evidence and is as strong as possible.

 

  1. What are my rights if my claim is denied?

You are entitled to a written explanation from the claim administrator of the reasons why your claim for disability benefits was denied. You are further entitled to appeal the denial to the claim administrator. If you have not hired a disability attorney by this point, now is the time to do it.  You are allowed to submit additional evidence with your appeal.  This evidence might include further medical and vocational testing and evaluation.  An attorney can review your denial letter and assess the reasons why your claim was denied.  He or she can then help you assemble the additional evidence that responds to the claim administrator’s concerns.

It is very important to appeal.  If you do not submit an appeal to the ERISA plan administrator, you will likely be barred from taking your claim to court.

If your appeal is denied, you may then bring a lawsuit in federal court.  Unlike other lawsuits, you will probably not have a chance to testify and the court will not allow you to submit any new evidence.  It will base its decision on the materials that are already in your claims file. Thus, the importance of submitting complete and thorough documentation supporting your disability claim to the insurance company during the administrative stages (initial filing and subsequent appeal) cannot be overstated.

Oftentimes legitimate life on disability claims have been lost where claimants fail to put their “best foot forward” during the administration appeal process, and are barred from doing so once a lawsuit has been filed.  The takeaway: until you have to go to court DO NOT wait to hire an experienced  ERISA disability lawyer – by then it may very well be too late.  These claims are typically won or lost at the administration appeal level, so this is the time to have the benefit of experienced ERISA counsel.

 

  1. What impact does ERISA have on disability claims?

Although ERISA was intended to protect your rights and benefits, ERISA’s complicated requirements make it difficult for employees to successfully claim benefits.  In practice, ERISA ends up protecting the insurers rather than the employees because if you do not exactly follow the instructions to file a claim for benefits, and if you do not abide by the strict time line, then your claim could be denied.  Further, you may only appeal a denial of benefits to a court after you have exhausted all of your administrative remedies (i.e., made your initial claim and appeal) and court review is limited.

As mentioned above, the court will generally consider only the evidence already in your claims file.  In deciding your case, the court will determine whether the insurer “abused its discretion” or acted “arbitrarily.” This means that unless the insurance company’s decision to deny your benefits is unsupported by the evidence or is clearly incorrect, the judge cannot overturn the decision, even if the judge believes that you are really disabled.

In contrast, if you had a private disability policy not covered by ERISA, the court and a jury would review your case “de novo,” or anew and make an independent decision on whether you are disabled.

 

Disability Lawyers in NJ Can Make a Difference

Whether you are applying or appealing a denial for short-term or long-term ERISA disability insurance, our disability lawyers will:

  • Obtain and review your medical and employment records to determine the date of your disability and last day of work
  • Ensure your medical and employment records, and other supporting documentation, are complete.
  • Ensure you meet all deadlines.
  • Review your disability insurance policy to follow filing instructions exactly.
  • Compile your supporting documents and application or appeal in a persuasive, thorough and complete package.

Consult the knowledgeable disability lawyers in NJ with Uscher, Quiat, Uscher & Russo, P.C. at 1-800-797-5575 to discuss your ERISA disability application or appeal.

 

Q

Hold Unum Accountable for Your Unum Denied Disability Claims

Unum Denied Disability ClaimsClients often question our attorneys about Unum denied disability claims and if they should instead seek a settlement. While Unum might offer claimants a settlement, they will do so according to their own terms, which will likely be very favorable to Unum. Make no mistake about it: buyouts always favor the insurance carrier, or else they would not agree to them.  Every buyout results in a financial windfall for the carrier, whereby they would pay a lump sum amount up front, in exchange for a waiver of any future benefits claims.

Understanding Company Tactics Regarding Unum Claim Denials

Some experts across the industry agree that Unum has frequently not provided accurate figures to the policy holder when it comes to settling lifetime claims. In other cases, the company has been accused of offering settlements before and during the holidays when they know that the insured might want the extra money. If Unum does offer a settlement, which they might refuse to do, the offer could fall on the low end of the spectrum. If the insured refuses the settlement, the claim can be subject to greater scrutiny thereafter, and be watched closely for regular updates. An attorney with experience in investigating these settlements can provide direction regarding the negotiation and evaltuation of a settlement offer. Remember that a decision about an insurance settlement should not be made in desperation; instead, the policy holder should carefully consider the ramifications of accepting a settlement.

Filing a Complaint Against the Company Regarding Unum Denied Disability Claims

Many life and disability insurance claim consultants feels that filing a complaint with your state insurance department against the company is not worth the time or energy. The state insurance department frequently decline to investigate ERISA matters which are governed by federal law; even in non-ERISA matters, the insurance departments may not investigate the complaint, instead sending a letter that states the insurer’s stance and that disavows any wrongdoing. A more effective solution could be for the insured to take up the matter with the state insurance department and ask for a review of Unum’s claims practices. While they might not pay attention to an individual complaint, they will look more carefully if many people complain about the same thing, which could eventually help hold the company accountable.

Holding Unum and Other Carriers Accountable

Insured claimants can also contact their employer’s human resources department to explain the unfair tactics used by Unum. The employee should be prepared to back their story with specific examples of how poorly he or she was treated. A loss of market share would seriously impact Unum and possibly lead to updating the procedures used for claim reviews. In some cases, employers are already canceling policies with Unum and opting to go with other insurers instead. Your employer might be able to offer alternatives to policies through Unum. Most companies sit up and pay close attention when their bottom line is affected. Change can happen at the grass roots level when employers understand that Unum is not serving the needs of the insured and not providing effective coverage. They might reconsider how to handle claims more fairly instead of dismissing an insured’s request with so little consideration.

Contact Our Law Firm for Help with Your Unum Denied Disability Claims

If you have questions about dealing with Unum or other carrier’s claim denials, call Uscher, Quiat, Uscher & Russo, P.C. at 800-797-5575.

 

Q

If I am offered a lump sum buyout of my policy, should I take it?

Not before a knowledgeable lawyer thoroughly reviews it.  Insurance carriers rarely do anything voluntarily, unless it is in their financial or legal interests.  Whether to accept a disability claim buyouts is a complex issue which should be  thoroughly analyzed by some one who completely understands  the real value of a buyout offer and is working solely for the policyholder.   All pertinent factors, which bear on such a decision must be carefully weighed. Claimants should be wary of a carrier trying to get out from under a claim cheaply by tempting the beneficiary with what appears to be a sizable sum when the beneficiary is hurting and is financially strapped.

Q

If I end up in litigation with my disability income or life insurance carrier, am I entitled to have my legal fees reimbursed by the carrier if I win?

Yes and no, depending on the type of policy the claimant has and the state in which the claimant lives.  Claimants may have state law rights which allow them to have their legal fees reimbursed by the carrier if they win. Most states, including New Jersey and New York, do not provide for these rights for private disability insurance.  However, if you recover punitive damages for a carrier’s “bad faith” your legal fees will most likely be covered.

If your claim is under a group policy covered by ERISA, such as an employer sponsored Long Term (“LTD”) Disability insurance plan, you are entitled to ask the court to reimburse you for legal fees if you are successful in litigating your claim.

Q

If I am asked by a carrier to submit to an Independent Medical Examination (“IME”) or Functional Capacity Evaluation (“FCE”), what are my rights?

Most disability policies require insureds to submit to an Independent Medical Examination (IME) by doctors selected by the carrier to confirm the diagnosis and the degree of impairment. Some also require a Functional Capacity Evaluation (FCE) to determine how the claimant’s ilness or injury affects the ability to perform his or her occcupation.  Insureds who do not agree to participate in this process may lose their benefits. However, the insured does have certain rights with respect to the conduct of IMEs and FCEs:

  • The right to have a witness present, including an attorney.
  • The right to record the session.
  • The right to get copies of the reports and underlying test results.
  • The right to have IME and FCE exams scheduled at a convenient time and place.
  • The right for these tests to be scheduled only as frequently as is reasonable under the circumstances.
Q

Does a claimant have to continue paying premiums on a disability income insurance policy while disabled?

Once a claimant is on long-term disability, many policies provide for a “waiver of premium” which waives premium payments for the duration of the disability. Once the disability ends, premium payments resume.

Q

Will I need a doctor to “sign off” on my disability?

Yes. Disability insurance carriers will not pay a disability claim unless a competent medical provider has certified the disability and its impact on claimant’s ability to do his or her job.  The physician must not only describe your illness or injury in detail, but must explain to the insurer why the illness or injury prevents claimant from performing his/her job duties. All disability claimants must be under the continuing care of a licensed medical practitioner, who is competent to treat the disabling condition, and can attest to the ‘restriction and limitations” which prelude that claimant from returning to gainful employment.

Q

How long does a carrier have to make a decision on my claim?

This depends in part on whether the policy is a group policy covered by the Employee Retirement Income Security Act (“ERISA”), or is an individual disability income policy. Generally speaking, Courts allow carriers to take a “reasonable” amount of time to fully investigate a claim before making a determination.

What constitutes a “reasonable” time will depends in large measure on the facts of each case. In ERISA cases, carriers generally have 90 days to decide a claim, but this time period can, and often is, extended for good cause.

Q

When should I get help with my disability insurance claim?

Immediately. Disability claim forms are not like auto or health insurance claim forms. The very specific questions raised by a standard disability insurance claim forms require much thought. Once a claim form is submitted, it is part of the case forever.  Disability insurance claims may stand or fall because of those initial claim forms.

To avoid mistakes and pitfalls which can result in delay or denial of legitimate claims, a knowledgeable, experienced disability insurance attorney should assist the claimant in preparing the claim forms before they are filed with the carrier.

Q

Are there time requirements on when to file a disability claim?

Yes. All disability insurance policies provide for strict timely notice of a claim to the carrier. Failure to give timely notice of the claim, may lead to the carrier denying the claim. The claim may be reinstated by a court unless there is real prejudice to the carrier as a result of the delay. Disability insurance claims are hard enough to prosecute, without these types of issues, so it is best to get the timing right the first time.

Q

I have a disability insurance claim. What must I do?

Disability insurance companies use varying language in their policies, but generally a claimant must establish that:

  • claimant has a medical condition (illness or injury), which is certified to by a competent medical provider;
  • claimant is unable to perform their substantial and/or material occupational duties a result of this condition.
  • claimant must meet both of these criteria before being eligible for benefits.

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