14 Ways to Guarantee That Your Long-Term Disability Insurance Claim is Denied and You Lose In Court

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1 Written Especially for Doctors and their Patients 14 Ways to Guarantee That Your Long-Term Disability Insurance Claim is Denied and You Lose In Court (Avoid them and you may have a shot at winning your claim) Benjamin W. Glass, III Attorney at Law 3915 Old Lee Highway, Suite 22-B Fairfax, VA (fax)

2 Free Legal Information for Consumers* Valuable free reports are available by ing me at These reports have been written to level the playing field between claimants and the insurance companies. These confidential reports are written so that you can have this information before you hire an attorney or talk to the insurance company. The reports may be reprinted and distributed if they are reprinted in whole. Just Ben Glass and ask for the report(s) you want. Special Report on Lawyer Advertising. Confused by lawyer advertising? What does it mean when lawyers advertise that they are Board Certified, Listed in Best Lawyers in America or Highest Rated. This free report explains what you need to know in order to find the best lawyer for your case. Five Deadly Sins That Can Wreck Your Automobile Case. What service provided by some lawyers can be the kiss of death to your accident case? Did you know that the type of doctor you choose to treat you can have a significant affect on the amount of money you are awarded? Do all attorneys charge the same fee? (Hint: Read about our innovative ClientFirst fees contingent fees as low as 15%.) This free report offers valuable advice that you need to have right from the beginning of your claim. Why Do Most Medical Malpractice Claimants Never Recover a Dime? Despite what you read about a massive malpractice crisis most claimants never recover a dime. Medical malpractice cases are extremely difficult. Read this report to find out why proving your doctor made a mistake is not enough to win your case. Understanding what is in this report will help patients with legitimate claims pursue their cases in court with the right attorney. Why Did A Respected Federal Judge Say That Disability Claimants Who Attempt to Appeal Their Cases Without a Lawyer are at a Distinct Disadvantage? This report looks at a case from a North Carolina Federal Court where the judge acknowledges the high hurdles that claimants face in long-term disability cases. How Did the Supreme Court of the United States Make Long-Term Disability Cases Even More Difficult? In a little publicized opinion the Supreme Court ruled that insurance companies need not give any special weight to the opinion of the patient s treating physician. More importantly, the court explained that a claimant s success may depend more on the wording of the policy than on whether they are able to work or not. An Insider Speaks 20 Page Court Affidavit from A Former Unum Employee. You will be shocked when you read this claim adjuster s allegations about the claim practices at the largest disability insurer in the world. We ve got it and its yours for the asking! (Visit to find out why it gets 50,000 hits per month) *Sorry, reports not available to employees of insurance companies.

3 Myths You May Have Heard (from neighbors, friends, other lawyers and insurance companies) If you write the insurance company a letter and are reasonable, you will get a reasonable settlement proposal Filling out the Insurance Company form will get you your benefits If you have been awarded social security disability benefits, you will have no problem getting your long-term disability benefits If the insurance company sends you an activity log, it s because it really wants to know what you do day to day The best way to convince the insurance company that you can t work at your sedentary job is for you to write a 36-page letter describing your medical condition in exquisite detail Any lawyer can help you with your ERISA long-term disability claim You should hold back your best evidence for trial Your doctors will come to trial to testify for you and convince the judge that you are disabled You will be allowed to testify at trial if your case is filed If your doctor writes that you are disabled, then you will win your case The insurance company appeal process is fair and unbiased (you probably did not believe that one when you heard it) When you file suit, the issue the judge has to decide is whether you are disabled or not You are on a level playing field with the insurance company If your employer says you are too disabled to work, the insurance company will automatically pay Sorry to disappoint you. None of the above are true. Read On!!

4 14 Ways to Guarantee That Your Long-Term Disability Insurance Claim is Denied and You Lose In Court (Avoid them and you may have a shot at winning your claim) We Wrote the Insurance Company The Day We Were Hired and They Said It Was Too Late!

5 Who Is Behind This Report - And - Why Should I listen to you? I want to thank you for requesting this special report. I know that the information I give you here will help you in your quest to obtain disability benefits. My name is Ben Glass and I have been representing individuals against insurance companies since I limit my practice to insurance disputes and personal injury so if you want a divorce, or a will, or have a traffic ticket, I can t help you. 1 I am listed in Best Lawyers in America (www.bestlawyers.com) and certified by the National Board of Trial Advocacy (www.nbtanet.org.) I am on the Board of Governors of the Virginia Trial Lawyers Association and I teach other lawyers how to try cases at the Virginia College of Trial Advocacy. I am frequently invited to speak to other lawyers on a variety of topics at continuing legal education programs around the country. I have written numerous articles to help lawyers and consumers. You can find out more about me at my web site at or at My web site also has a lot of useful articles and links on a variety of subjects. I represent many people who have been denied long-term disability benefits by major insurance companies. I ve handled cases against UnumProvident, Paul Revere, Continental (CNA), Hartford, Prudential, MetLife, New York Life, AETNA, CIGNA and others. I have seen their denial letters and, more importantly, I have seen what their lawyers say in court when we sue them. (I sometimes wonder if the insurance agents selling the policies know what their own lawyers say about what the policies do and do not cover. The agents sell financial protection and the claims adjusters and lawyers sometimes try to take it away from you.) I also review virtually every long-term disability court decision that is published across the country. I network daily with the relatively small number of lawyers across the United States that regularly represent claimants in long-term disability cases. I have seen what wins and loses cases. Often cases are lost not because the person is not disabled, but because they made some very preventable error in processing their claim. 1 But if you live in Virginia, Maryland or the District of Columbia, call us anyway. We can usually provide you with the name of other attorneys who may be able to help with your situation.

6 Why is This Report Free? (Don t all lawyers charge for everything?) Frankly, I am sick and tired of seeing people lose their chance at getting disability benefits because they didn t know (and the insurance company won t tell them) the traps they can easily fall into. I cringe every time someone calls my office or sends me an e- and tells me that they have already appealed their denial themselves. Far too often the appeal consists of nothing more than a letter that says I appeal or a doctor s report that says, without sufficient justification this person is disabled. I also get calls from other attorneys who have taken on a new client with a disability claim, started the process and quickly found themselves over their heads. (One of the reasons that I teach other lawyers how to do these cases is so that they will learn to handle the cases correctly the last thing a claimant needs is an attorney who doesn t understand the law of long-term disability claims and makes the situation worse.) I am willing to give away this information because I want you to avoid those same mistakes. If you need a lawyer and I am the best fit for you, great. Just as importantly, however is the fact that I may be able to send you in the right direction on your own or help you get an attorney in your area who knows how to represent people in these claims. Unfortunately there are just not enough attorneys out there who understand and can handle the explosion of claims that the industry is facing. You may spend a long time finding the right attorney. You must take personal responsibility and NOT GIVE UP on trying to find an attorney experienced in these cases. I ve also found that this type of information will answer a lot of questions, and, frankly, keep me off the telephone telling this story time and time again. I would rather be working on my cases than starting at the beginning with each new client who calls me. This report actually makes my life a little easier since I can teach you a lot of things without spending an hour of my time and without any charge to you Card sent by a happy client I, too have spent hours surfing the Internet and found others offering similar information, for a fee. Frankly, nothing was a good as this report. I wouldn t think of charging a fee for the information contained in this report. People need to get this information, quickly and without hesitation and then make a decision as to whether to seek the services of an attorney in their geographic area. IF YOUR CLAIM HAS ALREADY BEEN DENIED YOU MAY BE WASTING VALUABLE TIME RIGHT NOW THE TIME LIMTS ARE SHORT.

7 I guess I could sell this on the Internet (I ve ed enough to make me rich) but I don t think that would be the right thing to do. I also could spend all day on the phone explaining this to claimants, but that would not be a productive day for me. I Am Not Allowed to Give Legal Advice In this Special Report! (and you should not expect to get specific legal advice for free) I know the arguments the insurance company will make and so should you, before you ever stop working or file a claim. In this report I give you the major insurance company arguments and set out the mistakes people make. Remember though, unless you have already hired my law firm, this information is in the nature of general commentary. I am not allowed to give specific legal advice unless you are my client. I think this special report will help you with your claim, but (and this is a big but ), every case is different! Indeed, just about every disability insurance policy we see has some unique provision that makes it different from any other policy. Each insurance policy has a different claim manual (I have collected several of them!) to guide their adjusters. Please don t send me a detailed and say what do you think. I can t give off-the-cuff advice without thoroughly reviewing (and charging a fair fee) your documents. Talking to Me Before You Even File Your Claim Makes a Lot of Sense My representation of you can begin before the claim process starts. Many people come in just to talk because they are thinking about making a disability claim. These are the people I can help the most because they have not made any mistakes. Sometimes I have to undo work that claimants (or their lawyers) have done. I have even talked some people into going back to work they did not have a provable disability I SAVED THEIR JOBS (and their other benefits, such as life and health What They Told You When They Sold You The Policy According to the U.S. Census Bureau, you have a one in five chance of becoming disabled. A 1997 study released by the Census Bureau reveals that more than 152 million people between the ages of 21 and 64 the prime working ages for most Americans have some form of disability. According to the American Council of Life Insurers (ACLI), a person age 35 is six times more likely to become disabled than die before he or she reaches age 65. insurance) FOR THEM. Unfortunately, many people don t hire us until after they have filed forms, had doctors write reports and completed their appeal process with the insurance company. Recently, I reviewed a file where the doctor had already written no limitations on the claim form. The doctor thought this was needed to allow the claimant to try a few hours of work. Unfortunately, that doctor probably destroyed the entire claim before it could even get off the ground. If they had only faxed me the form in advance I could have saved the claim by making sure that the doctor knew the ramifications of that statement. There is a way to accomplish what the doctor was trying to do!

8 So, let s get to it. What avoidable mistakes do people make? Mistake #1-Choosing the wrong date of disability The insurance definition of disability is contained in each policy and each policy is different. Usually, it is a combination of an inability to work coupled, with an actual loss of wage-earning ability. This can be important in those situations where even though you may be cutting back your hours, your employer still pays you full salary. If you are still getting paid full salary-you may not be deemed disabled under your policy even if you have a substantial impairment. It is important to identify the date of disability because all other dates (i.e., when you must file proof of claim, when payments start and when you can appeal your denial) are calculated from the date of disability.

9 Mistake #2 Not knowing what is in your doctors records before you make your claim Insurance companies will only pay benefits if they are convinced that your medical records contain enough objective proof of disability. As soon as you file your claim, these companies will request records from your doctors (and from any doctors referenced in those records) and carefully scrutinize them. You must get these records in your hands before you file your claim. Review them yourself! Are they accurate? Are they complete? Has the doctor recorded An insurance company all of your complaints? In one case, an insurance company denied benefits when denied benefits because included in the records sent by the the doctor mistakenly doctor were the records of another person! Those records sent a part of said all was well and the insurance company relied on someone else s those records (Great investigation, that was, wasn t it? The records. The claimant claims adjuster had so many files, she never even noticed never knew what was that she was reading the wrong records.) The claimant in the file and had never knew that the records her doctor sent had someone to hire an attorney else s records in them because she didn t get her doctor s to undo this mistake. records FIRST. It was only after she hired a lawyer and sued the insurance company that she found this out. All of that expense and hassle was 100% avoidable by requesting the medical records before filing the claim with the insurance company. Chronic Fatigue? Cardia c Illness? Fibromyalgia? You are not the first person to claim disability for these diseases (and many others.) There are many court cases that give guidance as to what evidence judges have accepted and rejected as convincing proof of disability. These court opinions are an invaluable resource for guiding you and your doctor as you go through the process of making a disability claim and appealing a denial. An experienced attorney can supply you with actual case reports that show which cases were winners and which were losers. THE INSURANCE CO MPANIES KNOWS WHAT THESE CASES SAY, WHY SHOULDN T YOU? Tip: Contact an experienced disability attorney near you BEFORE you file your claim with the insurance company. You can call me at or visit my website at

10 Mistake #3 Stopping Work on the Wrong Day To an insurance company, the last day worked or LDW, is a very important date. Much of its investigation of your claim will revolve around the medical, vocational and financial facts in existence as of that day. Unfortunately, many people stop working on the well-meaning, but legally incorrect, advice of doctors, supervisors, co-workers, family or friends. As much documentary evidence as possible must already be in existence on your LDW because an insurance company will ask the following questions: 1. How come the person stopped work on LDW when they worked 8 hours the day before and 40 hours the week before that? 2. What does the medical evidence show? Was there any objective medical evidence proving a change in condition between the LDW and [pick any arbitrary recent time period.] 3. Even if you have some dreadfully debilitating disease, and have worked through it for years, the insurance company is likely to say, well, yes, you have a dreadfully debilitating disease and The answers to these questions can and should be found in the medical records BEFORE you file. most people would have stopped long ago BUT YOU DIDN T SO WHY ARE YOU STOPPING NOW? You may have very good answers to all of these questions but why risk filling in the blanks later, after your claim has been denied when you can take care of these issues now? One man quit work and applied for benefits even though his doctor s records did not say he was disabled. He lost his job, his health insurance and was properly denied disability benefits

11 Mistake #4 Assuming if Your Employer Says you are Too Sick to Work, This will Be Enough For Your Insurance Company Remember that either you or your employer has purchased an insurance policy. Therefore, in almost all cases, the money that may be paid to you for your long-term disability comes from the insurance company. It is that company, not your employer, which determines when you meet the legal definition of disability under the terms of the insurance policy. We have seen cases where the employer would not let the employee come back to work without approval from the doctor and yet the insurance company would not pay the benefits! How can this be? The answer is that most insurance policies insure an occupation, not a job. This means that while you may not be physically able to do all of the specific job requirements of your employer, you might still be able to perform the substantial and material duties of your occupation. Mistake #5 Not Understanding Your Policy Before You File Your Claim Insurance polices can be hard to understand. You should obtain and review your policy before you file your claim. If your policy is an employer-sponsored policy, you should obtain both the Summary Plan Description (SPD) and the insurance policy itself before you file your claim. Both of these documents should be available from your employer. The Employee Retirement Income Security Act (ERISA) requires that these documents be made available to you upon written request to the plan administrator. 2 If you have a private policy and cannot locate it, call your agent. You can obtain a replacement policy (usually for a small fee) from your insurance company. Whether you have an employer-sponsored plan or a private policy, make sure you obtain and read all amendments and endorsements to the policy. WARNING Does your policy only protect you if you cannot do each and every duty of your occupation? If so, you need to be aware of the recent 4 th Circuit Court of Appeals decision, Gallagher v. Reliance Standard. This decision, in my opinion, makes these policies virtually worthless. Paralyzed actor Christopher Reeve would not have recovered under a policy with definition of disability! If your policy defines disability as the inability to do each and every substantial duty of your occupation, consider buying a new policy. Most policies have a more liberal definition of disability. 2 Indeed the plan administrator faces penalties of up to $ per day if it does not provide you with these written documents within 30 days of a written request.

12 Mistake #6 Trusting the Advice of the Human Resources Department Oftentimes employees have been taught to take all questions about benefits, including long-term disability benefits, to the human resources department. This well-meaning advice can be fatal to your claim if the advice you get is wrong. We don t suggest that your own employer would deliberately mislead you, but our experience tells us that (1) most human resources personnel are not legally trained in the interpretation of insurance policies and (2) human resources generally has no pull whatsoever with the insurance company. Again unless the employer is actually funding the monthly benefits (and this is a rare occasion) it is the insurance company that is protecting its own assets. Our experience, based upon reviewing many insurance claim files, is that no amount of pleading by your employer will influence an insurance company that wants to deny benefits to you. You need to take personal responsibility for your own claim! Mistake #7 Using Only Insurance Company Forms to Document Your Claim When you make a claim for benefits, the insurance company will send claim forms for you and your physician to complete. Typically, the physician forms will have questions such as How much can this person lift; How long can they sit; Can they walk long distances. These questions are irrelevant to many claims. The doctor will dutifully answer the questions the insurance company asks, but later the insurance company will say that those answers just weren t enough information! You should sit down with your doctor, (after having fully reviewed your own records) explain the terms of your policy, and get your doctor to set out fully in a report why your sickness or illness prevents you from performing the substantial and material duties of your occupation. The doctor may charge you for this report. Pay the charges! It is far better to have a welldocumented claim from the beginning than to have to go back, after you have been denied benefits, and justify your claim. Also, if you have been denied benefits and are appealing your claim, you and your doctor will have a limited time (as defined in your policy) within which to submit additional reports. Why be under time pressure when all of this work can be done before you ever submit your claim? One disability claims reporter said: The plaintiff in this case was represented by Benjamin Glass, a knowledgeable and exceptionally capable attorney practicing in Virginia Disability E-News Alert, April 2003

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14 Important: You May Not Have Disability Coverage When You Need It If You Don t Read And Understand The Avoidable Mistakes That Others Have Made Before You Ever File Your First Claim With The Insurance Company Know this. If coverage when and you are not your employment you stop working for terminates working. So if months before because have you don t meet you finally meet gone out on disability, but the insurance company does not believe that you were disabled on the last day you worked, it will not pay you benefits even if your condition gets worse! Policies provided by your employer usually terminate the definition of disability on the day you stop work, you won t even have a policy in place if your condition gets progressively worse over the next weeks or months. If you have a private policy (one you bought from an agent yourself) the insurance company s definition of disability, you may find that your monthly insurance check is based upon your status as RETIRED, rather than on the substantial income that you were making in your occupation.

15 Mistake #9 Doing Things Your Doctor Says You Shouldn t Do It goes without saying that you shouldn t try to cheat the insurance company. We have interviewed potential clients who we felt were trying to cheat the company. We don t represent cheaters! Understand that they will find you out. That van down the street just might have a video camera hidden inside. PRIVILEGED PRIVILEGED Here s how UnumProvident tried to catch one of my clients. 35 hours of secret video yielded nothing. I don t represent cheaters Mistake #10 Using the Insurance Company s Lawyers to File for Social Security If the disability insurance company pays you long-term benefits, you will usually be required to file for social security benefits. If you win your social security case, you will usually be required to reimburse the insurance company and further benefits will be reduced by the amount of the social security payment. If your dependents receive social security benefits because of your disability, you payments will also be reduced. (Great deal for the insurance company, isn t it?) Many insurance companies will offer you the services of their lawyers (or an affiliated law firm) to file for and pursue your social security benefits. Don t use them. We have seen too many instances where these lawyers have steered the social security claim towards a disability that is favorable towards the

16 insurance company, a mental condition which limits the insurance company s payments to 2 years, for example. We have also seen situations where an insurance company lawyer who is representing a claimant in social security quits the case while he is supposed to be representing you before the Social Security Administration because while he is working to get you benefits, the disability insurance company terminates your benefits anyway. We sometimes get the impression that they are only working to recover the benefits for the insurance company. We don t have any proof of that, but why risk the apparent conflict of interest? You should hire your own experienced social security lawyer. (That won t be me I know very little about social security law but I can refer you to someone who does!) Finally, even though the insurance company may provide the social security attorney to you for free, it s not the great deal they make it out to be. In most cases, if you get your own social security attorney and pay their fee, this amount will be deducted out of the money you are required to pay back to the insurance company. So you really don t pay any more to get your own independent attorney. Meet Your Deadlines In a long-term disability claim there are deadlines for (1) filing your notice of claim; (2) filing your proof of claim; (3) filing your administrative appeal if your claim is denied; and (4) filing your lawsuit if your administrative appeal is denied. The time limits are found in your policy and in your jurisdiction s law. Mistake #11 Hiring a Lawyer Not Experienced In Disability Insurance Litigation A new client told me recently that you guys are hard to find. I asked him what he meant and he told me that he had searched for a long time before he found an attorney who specializes in disability income insurance litigation. Unfortunately, there are just not many of us out there. Litigation of a long-term disability insurance claim is different from litigation of an automobile accident claim. It is different from many other contract claims. The world of insurance dispute litigation has its own body of case law, history, procedure and terminology. Your attorney should know, before the case begins, what you will need to prove in order to win your case. You should look for an attorney experienced in disability litigation.

17 Mistake #12 If Your Policy Came Through Your Employer, Not Making Sure Your Attorney is Experienced in ERISA ERISA is the Employee Retirement Income Security Act of This federal law was originally designed to protect your retirement pension but today it governs just about every aspect of any employee welfare benefit, including life, health and disability insurance. ERISA has a special rule for just about every step of the disability insurance process. It sets out the time frames within which insurance companies may initially decide claims, give you documents that you request and decide your appeals. Most importantly, the law of ERISA controls what evidence you will be able to present to a judge if you file suit, and what standard of review that judge will use. In short, your attorney must understand both the law of disability insurance and the law of ERISA. Insurance Companies Love ERISA Here is an internal memorandum from Provident Insurance Company (who later merged to form UnumProvident) The economic impact on Provident from having policies covered by ERISA could be significant. As an example, Glenn Felton identified 12 claimants where we settled for $7.8 million in the aggregate. If these 12 cases had been covered by ERISA, our liability would have been between zero and $0.5 million. In order to take advantage of ERISA protection.. ERISA applicability may influence our course of action [in claim handling]

18 WARNING! Prudential s Mental Illness Limitation Most policies contain a 24-month limitation for disabilities caused by mental illness but Prudential sells a policy that has a very troubling provision. Prudential s policy limits your disability benefits if your disability is caused at least in part by a mental, psychoneurotic or personality disorder. This means that if your disability is 99% physical and 1% mental, your benefits may be terminated after 24 months of payments. This is unlike any other mental and nervous provision that we have seen and there is absolutely no reason to buy a policy with this type of limit! Many courts will read the policy exactly as it is written. After all, you have a choice as to what policy to buy. Check your policy out now. Mistake #13 Handling Your Case Without Legal Help I know, I know, you are saying that Ben Glass is an attorney and of course he would say that you need a lawyer. Well, I sincerely hope that you do not need an attorney but I also hope that you will at least consult with an experienced attorney (Anyone! It doesn t have to be me) before dealing with the insurance company yourself. But if you need more proof that it just may be helpful to have an attorney, remember that the whole process is, by nature, adversarial. Your claim takes assets from the insurance company. Need more convincing? Turn the page and consider the following actual cases: 1. The Insurance Company Doesn t Even Have To Be Right and There Are Virtually No Trials In ERISA, So You Better Put Your Best Evidence In Before You Get to Court!

19 If your policy is the typical employer-sponsored group policy, the playing field is not level! Unlike virtually any other American litigation, courts give the benefit of the doubt to the insurance company in the false protection of ERISA. (Want to change this in Congress? Fat chance. Congress specifically exempted its members and all employees of government from this terrible law.) Here s A Portion of An Actual Court Brief Filed by UnumProvident in Federal Court After it Denied Benefits Once you get to court, UnumProvident says that the issue is no longer whether you are disabled. Heck, why did you buy that policy in the first place? 2. The Law Requires the Insurance Company to act as an impartial fiduciary, But Turn the Page and See What We Found in a UnumProvident File

20 Privileged Privileged While still investigating the claim a Unum claims adjuster wrote: How can we leverage both his and his doctors credibility in our denial letter? What s a Roundtable? One Court said:

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