Mugshot_2

If your long term disability claim has been denied by the insurance company and you want to fight back, you’ve come to the right place. Big Insurance counts on disabled people, and even some lawyers, throwing in the towel before the fight is over. Read on to learn all the ways I can help you dismantle the insurance company’s case; then call me at 877-626-3501.


Are-You-Ready-ToBelieve it or not, ERISA allows insurers to administer their own policies and places the burden for holding them accountable on you, the disabled claimant. A denied claim can be only be overturned by proving that the insurer violated its own policies or misinterpreted the medical evidence. This is why filing a good initial claim is so important and why having an experienced ERISA lawyer can make all the difference.

To win an ERISA case, a lawyer must know how to build a case with medical evidence, must thoroughly understand how insurance policies are administered and must anticipate what tactics an insurance company may use to defeat your claim.

Then, when you make it through the insurance company’s appeal process, you may file a suit in federal court – only in federal court, not in state court. But, even then, you won’t get your day in court where you can testify, call witnesses, introduce evidence and have a jury decide whether your claim was wrongly denied. No, all you can do is to present the insurance claim file (they call it an “Administrative Record”) to the judge, not a jury. Then, the judge doesn’t decide who was right or wrong. The judge only decides whether the insurance company was “downright unreasonable”. The judge looks at whether there was sufficient evidence to support the decision. The judge doesn’t determine what evidence is better, yours or the insurance company. He doesn’t weigh the evidence and give the victory to the side with the strongest evidence. He only looks first at the insurance company’s evidence to decide if there was enough there to support the decision, regardless of whether other evidence in the file was more reliable and contradicted the evidence relied on by the insurer.

So how does the insurance company win? First, they have a stable of doctors who are paid to say that you are not disabled. They then get written reports from these doctorswho have never examined you or even seen you. They “rely” on these reports and ignore the records from your doctors. Then, they deny your claim. If you sue, the deck is stacked against you and, without help, you are not likely to win. Because ERISA is so complicated and technical, many lawyers will not take these cases. But, there are a few attorneys around the country who are experienced in this field and they can help level the playing field and improve your chances of a favorable outcome.

Although the deck is stacked against the disabled worker in an ERISA claim, there are things that an experienced ERISA lawyer knows to look for to help turn the tables and gain an advantage. Among those are the following.

Full and Fair Review

ERISA requires the administrator to give a full and fair review at every stage of the claims process. We are familiar with what the courts consider to be a full and fair review (and, there are differences between courts). We will carefully examine the entire file, including all the medical records, correspondence, denial letters and all other documents looking for evidence that there is a reason to overturn the insurance company’s decision. Some of the things we look for include the following:

Conflict of Interest

We review all information available (medical records, letters in the record, previous cases) looking for any conflict of interest. “Conflict of interest” essentially refers to a situation in which someone (a “fiduciary”) has a duty to make decisions in another person’s best interest, but his own interest would be served by a different decision. In the context of ERISA, the “Plan Administrator” (usually the insurance company) has a fiduciary duty to the disabled worker. The conflict exists because the insurers’ interests are served by denying claims, but the disabled workers’ interests are served by paying them.

The law is in a state of flux about how much attention a court should pay to such a conflict, but the current status of the law is that it is a factor to consider when determining whether the insurance company was reasonable in denying the claim. The Court is required by present law to consider how large a role the conflict of interest played in the decision making process. It is the lawyer’s job to be sure the record contains every possible shred of evidence pointing to a conflict.

Inadequate Medical Review

The courts require that the plan administrator consider all the evidence before it when making claim decisions. They cannot simply quote the opinions they pay their own doctors to give them and ignore the medical records from your doctors. The insurance company is not required to give more weight to your treating doctors’ opinions than it does to their own doctors, but it cannot simply ignore evidence that is contrary to its position. Thus, it is important to investigate the thoroughness of the administrator’s medical review. We will want to find out if all the medical records from your doctors were given to the doctors they sent your records to for review. If they left some out, that is some evidence of abuse of discretion.

Another thing we look at is decisions of the Social Security Administration. Most of your clients have begun receiving Social Security Disability Insurance Benefits (SSDIB) before they are very far along in the process. Usually the insurance company has urged them to apply for SS benefits, and then ignores the findings of the Social Security Administration when making their decision to deny benefits. Or they will mention it in their denial letter but not really consider it. This is another indication of bias, and abuse of discretion.

Denial Letters

One of the first things we want to look at when a new case comes in is the denial letters. The law has certain requirements for denial letters. We review the denial letters very carefully. We look for the reasons the administrator give for the decision to deny benefits to determine whether they are consistent with the medical records. We also look for other requirements, such as the requirement to provide clear guidance to you describing what specific additional information you need to produce during an appeal. We look for the reasons they rejected evidence favorable to you, and whether the reasons given are reasonable. Failure to follow the law in drafting the denial letters is more evidence of abuse of discretion.

Objective Evidence Requirement

We often find that rejection letters say something like, “There is insufficient objective evidence that you are unable to work because of your condition.” Thus they reject what they describe as “self reported symptoms”. In reality, all symptoms are self-reported. Some are observable by doctors, others are not. For example, if you report fever, a doctor can measure and observe that. But, if you report pain, a doctor has not way of objectively measuring it. That’s where your doctor’s training and experience plays an important role. We look for explanations of why your doctor believe your reports pain and whether it is consistent with the underlying condition.

If we are involved in your case before the final denial, we can sometimes work with your doctor and help him understand what needs to be in his records to support your claim. If the record contains reasonable reports of pain, consistent with your doctors’ diagnoses, and the diagnoses are reasonable and supported by the medical records, it is arbitrary to ignore them.

Pattern and Practice

Another area ripe for exploration is whether the insurance company has a pattern or practice of denying certain types of disability claims. For example, if you have fibromyalgia or complex regional pain syndrome, type 2 (also known as Reflex Sympathetic Dystrophy or “RSD”), and you have been denied, we would want to find out how many similar claims your insurance company has denied in the last several years. We would also want to compare medical reports from the same doctors that the insurance companies used your case to their reports in other cases to look for a pattern. Because we network of many other ERISA lawyers around the company, we can usually find other reports from the doctors that said you weren’t disabled. (Of course, the names of the disabled workers are blacked out from these reports). We are also familiar with other court cases where your insurance company has rejected cases similar to yours.

Standard of Review

The law requires the court to review an ERISA claim “de novo” unless the plan documents grant the discretion to make decisions to the insurer, and then the standard is “abuse of discretion” (also referred to as “arbitrary and capricious”). Under the first standard, the court looks at the evidence and determines on its own whether the claim is valid. The court does not defer to the administrator’s decision. The parties are free to develop the record, introduce additional evidence, and some courts have even allowed trials and live testimony from witnesses. The abuse of discretion standard dictates that the court only look at the record that was presented to the claim administrator (usually the insurance company) to determine whether the administrator abused its discretion in denying the claim. Since the court is only interested in whether the administrator acted arbitrarily or capriciously, it is only fair to judge the administrator on the record before it at the time the decision was made.

However, since most plan documents are nothing more that insurance contracts, they are written by the insurance companies. Of course, they include language to grant them discretion to interpret the policies and to make decisions about eligibility for claims. ERISA lawyers look for conflicts or ambiguities in the language of the grant of discretion. We are familiar with the cases on point, and the requirements for valid grants of discretion. Sometimes, even insurance companies, with their teams of specialized lawyers, still get it wrong. If we can show that the grant wasn’t valid, the court will apply the more favorable de novo standard.