Top Ten Ways to WRECK. Your Disability Claim

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1 Top Ten Ways to WRECK Your Disability Claim

2 Thank you for downloading our publication of the Top Ten Ways to Wreck Your Disability Claim. If you re taking the time to review this information, it s likely that you or a loved one is contemplating or currently working through a disability claim. We understand this can be a difficult time. Your disability may require extensive and long-term medical treatment; it also means the inability to work and earn income for you and your family. The process of applying for and attempting to secure the promised benefits can at times be confusing and frustrating. We regularly represent individuals who seek to secure the long-term disability benefits they have been promised. As a result, we thought that providing general information on this topic may be of interest to those going through the disability application process. Of course, this information is provided in the negative: these are things that we have seen disability claimants do that hurt or unnecessarily complicate their claims for disability. With that in mind, let s turn to the first way to wreck your disability claim 1 You fail to examine whether your claim is subject to ERISA. ERISA stands for the Employee Retirement Income Security Act. ERISA is a federal law that regulates most employee benefits, if those employee benefits are received through an employer. Despite its title, which references only retirement, ERISA also applies to severance plans, health plans, life insurance plans and disability plans. If disability benefits are subject to ERISA, the statute requires that an employee attempt to secure benefits from the insurer and, if the insurer initially denies the claim, then appeal through the insurance company. During that appeal process, the documents submitted by the employee and examined by the insurance company are combined to form the administrative record of the case. Depending on whether your disability claim is subject to ERISA, the administrative record may play an important and even determinative role in your quest to obtain disability benefits. Which leads to the second way to wreck your disability claim 2 You ignore the administrative record. Most disability plans are subject to ERISA. If your disability plan is subject to ERISA, then your ability to try your case in court is substantially limited. What do we mean by this? When most people think of going to court to have their case heard, they think of selecting a jury to hear the case, testifying before the jury, having other witnesses testify, providing documents to the jury and court to support their case, and then having the jury decide which party wins. ERISA turns those concepts on their heads. When an ERISA case eventually goes to court, the judge and not a jury will make the decision as to which side wins. And more importantly, the only evidence that the judge will consider is what was in the administrative record, the documents that the insurance company compiled while it denied your claim. This means that typically, after a case has been filed in court, no new evidence can be admitted and the judge will review only the same information and documents the insurance company reviewed. Now that you know the importance of the administrative record for a disability claim, what s the third way to wreck your disability claim? If you re trying to prove to the insurance company that you re disabled, probably the first question you need to ask is: what does disability mean?

3 3 You wait to get a copy of the administrative record. If your claim is subject to ERISA, the administrative record is not just an important part of your case it is the most important part of your case. If it s the most important part of your case, don t you want to see what s in there, both good and bad? When would be a good time to obtain a copy of the administrative record? Yesterday. The administrative review process the insurance company conducts must allow at least one level of appeal from an adverse decision. In order to present your best case to the insurance company (and eventually a court), you will want to know that s in the administrative record so that you can (1) ensure all helpful information is included, and (2) see what bad or unhelpful information is in the record. In addition to the administrative record, there s additional, critical information that many disability claimants fail to consider. Which leads to the fourth way to wreck your disability claim 4 You don t examine what the policy requires and doesn t require. If you re trying to prove to the insurance company that you re disabled, probably the first question you need to ask is: what does disability mean? Does it just mean the inability to perform your current job? Does it mean the inability to perform any job? Does it require that you have special proof, such as medical records from a specialist physician? The definition of disability and how you go about proving it is of critical importance for your claim. Even if you ve reviewed the definitions in your plan, you still have to file and pursue your claim (at least initially) through the internal insurance company process, which leads to the fifth way to wreck your disability claim The insurance company reviewing your claim is not your friend. 5 You believe the insurance company is your friend. Clients often contact us after their disability benefits claim has been denied and express surprise: But my case manager at the insurance company seemed very nice and sympathized with my situation. I sent all the records and information they requested and they still denied my claim. How could that have happened? The insurance company reviewing your claim is not your friend. It is supposed to treat you fairly and objectively review and decide your disability claim. However, there is a tension between your benefits claim and the insurance company s role in determining whether your claim meets the plan requirements. If the plan benefits are funded by the insurance company, the insurance company is in the position of deciding whether it wants to pay your disability claim out of its own pocket. Obviously, such a dual role can lead to conflicts of interest. Even if the plan benefits are funded by your employer (a selfinsured plan) and the insurance company is serving only in a reviewing role, it nonetheless is hired by the person liable for benefits. Again, the conflict of interest understandably concerns those applying for disability benefits. Because of this conflict of interest, you will want to gather all information and ensure that it is presented to the insurance company in the manner most supportive of your case. Which leads us to the sixth way to wreck your disability claim

4 6 You fail to find out what the insurance company is up to while your claim is ongoing. While your claim is being considered, it is likely the insurance company is doing several things, including: Contacting your current physicians to talk with them about your case; Requiring that you attend an independent medical exam with a physician chosen by the insurance company; Sending your medical records to an outside physician chosen by the insurance company to perform a review of the records and render an opinion on whether you are disabled; Hiring vocational personnel to provide an opinion about your job prospects and what type of other jobs they think you can perform; and Requesting additional medical records concerning you. Obviously if some or all of that information is not favorable to your claim, you want to know as soon as possible. Let s say that you ve found out the insurance company added information or documents to your claim, and perhaps that information is not favorable how will you respond? That leads us to the seventh way to wreck your disability claim 7 You fail to add additional information, where helpful. It is important to provide all helpful information to the insurance company for its administrative review. If that information was not provided earlier in the process or just recently became available it typically should be made part of the administrative record so that the insurance company can consider it and hopefully rule in your favor. Even if the ruling is against you, because the new information was provided to the insurance company, it will be considered part of the administrative record and therefore considered by a court in ruling on your claim. Of course, one of the most important sources of information that you typically want included in the administrative record is your medical records, which leads to the eighth way to wreck your disability claim 8 Do you know what your medical records for your disability claim say? You can bet the insurance company does. You ignore your medical records. Do you know what your medical records for your disability claim say? You can bet the insurance company does. And are you sure that the insurance company has all your medical records? If the insurance company is in the middle of reviewing your claim and you have a recent doctor visit, does the insurance company have that medical record? If your claim is subject to ERISA, typically the only information a court will review in your case is the administrative record, meaning the information that the insurance company has when it reviews and decides your claim internally. For this reason, it s not only critical to make sure that the insurance company has all your medical records, but to know what the medical records say.

5 Even if you take 1-8 to heart and create a very compelling administrative record to support your claim for disability, your claim may still be denied and you may be forced to go to court to pursue your benefits, which leads to the ninth way to wreck your disability claim 9 You fail to consider whether to file your claim in state versus federal court. There are two separate court systems in our country: state court and federal court. You may be entitled to file in either the state or the federal court system, depending on what type of claim you re filing. The choice of whether to file in state or federal court is a tactical one that involves analysis of the types of claims you may have, as well as weighing of pros and cons of those claims. Costs, time considerations and many other factors can also affect the decision of where to file your claim. Such considerations lead directly to the tenth, and final, way to wreck you disability claim We understand that no one asks to be disabled and that a disability is an emotionally, physically, mentally and financially challenging event in a person s life. 10 You don t seek an attorney s help until your claim has been denied and your only option is to go to court. If you ve read 1-9 above, you know that disability claims differ substantially than other court cases and there is a great deal of up-front legwork to ensure the best presentation of such a case. Unfortunately, clients oftentimes seek legal counsel only after they have been fully and finally denied. This can be a mistake for several reasons. First, for plans covered by ERISA, you may be prohibited from introducing additional evidence after the administrative review period is over, even where that evidence is highly supportive of your claim. Because most individuals don t deal with disability plans and disability insurers on a daily basis, we often see those individuals fail to take steps during the administrative process that would have helped their claims. Second, it may be helpful to have other medical or vocational professionals review your disability and work limitations. Having legal counsel help you consider that additional information and how to present it to the insurance company can help your claim. Third, navigating the administrative process can be a time consuming and difficult process. Having someone help can be beneficial. Fourth, it s hard to concentrate on healing and learning to cope with a disability when you re battling an insurance company and worried about whether you will receive benefits. Having experienced counsel take some of those burdens away can often provide a significant measure of comfort. Many clients are worried about approaching an attorney because they believe they will have to spend a lot of money to have the attorney help them. We understand that no one asks to be disabled and that a disability is an emotionally, physically, mentally and financially challenging event in a person s life. We understand that because you re disabled, you can t work. You can t afford to pay an attorney while you re fighting for your benefits. At Marcellino & Tyson, PLLC, our attorneys regularly handle disability claims on a contingency basis, which means that unless we recover for you, there is no attorney fee. This arrangement allows our clients to have legal representation without worrying about paying a lawyer while their case is ongoing.

6 ABOUT MARCELLINO & TYSON S ERISA LONG TERM DISABILITY PRACTICE ERISA law is complicated and can be easily manipulated by knowledgeable attorneys to support the interests of the benefit providers and insurance companies, as opposed to the beneficiaries. Further, employers, insurers and other plan administrators may enjoy a deferential review of their claim decisions, which means that, typically, a court will not interfere in a claim denial unless an employee gives it a very good reason. Fortunately, Bryan Tyson is a highly knowledgeable and experienced Charlotte long-term disability lawyer who understands the legal process from both sides. After obtaining both his JD degree and his LL.M. (Masters of Law) in Taxation with a concentration in Employee Benefits, he represented corporate clients in ERISA matters. Today, attorney Tyson uses his more than 14 years of experience in ERISA matters to represent individuals in their claims for disability benefits. He is one of a handful of attorneys who actively practice ERISA law in the Charlotte area. Marcellino & Tyson, PLLC is a law firm based in Charlotte, North Carolina concentrating in Family Law, Personal Injury, Short and Long Term Disability Claims, ERISA/Employment Law, and Immigration. Please visit us on the web at Our office contact information is: Marcellino & Tyson, PLLC 200 Providence Road, Suite 250 Charlotte, NC Phone: Fax: The information provided in this document is intended as general information about general legal topics and should not be construed as legal advice on any specific facts and circumstances, nor an advertisement for legal services. If you have questions about your specific situation, we encourage you to contact qualified legal counsel.

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