Posted By Mark E. Hancock || 31-Oct-2014

Many people wait too long before hiring an attorney, either because they hope the matter will resolve itself, or because they hope to save money. Waiting too long to see an attorney may, ironically, increase the Client's expenses and reduce the Client's chances of recovering. This is particularly true with regard to disability coverage under plans and policies people obtain through employment. The Client should see an attorney as soon as issues arise in this area, and attorneys who aren't experienced with such matters should refer the Client to one who is. In this article, I will explain some of the reasons why experienced legal help in this area is essential early on.

First, how insurance companies and plans determine "disability" is often misunderstood. The fact that your doctor says you are disabled is not necessarily sufficient for coverage purposes. While having Dr. X say: "my patient is disabled," is not a bad thing, it may certainly not be enough to obtain disability coverage. Establishing disability involves medical, vocational and other considerations and requires more support than just an opinion. Insurance companies and plans, moreover, are not necessarily required to accept the opinion of one of your doctors. They can, and do, hire doctors of their own.

A disability determination may depend on what type of coverage is at issue. A knowledgeable lawyer can help with this. If the Client has "own occupation" coverage, an attorney needs to identify the material duties of the Client's job. It may be the case that one has to look how that job is performed generally, as opposed to how it is performed for that particular employer.

If the client has "any occupation" coverage, the attorney needs to identify the material duties of jobs for which the client has transferable skills and for which he or she is reasonably suited on the bases of age, education, training and experience. It is important to be aware that some plans and policies start out with "own occupation" coverage, but change to "any occupation" coverage over time, often 2 years. It is also important to be aware that "any occupation" does not mean just "any job."

Jobs are grossly classified into categories, such as sedentary, heavy and points in between. There are physical requirements for each category. Employer job descriptions are relevant and useful in determining the Client's duties and physical job requirements. The U.S. Government Dictionary of Occupation Titles ("D.O.T.") and like sources list general duties of various occupations. The assistance of a vocational counselor/consultant may also prove invaluable and a knowledgeable lawyer can help with identifying and retaining one.

Medically, as stated above, a doctor's opinion that the person "is disabled" is most likely insufficient. To establish disability, medical professionals must address the Client's conditions and resultant physical and/or mental restrictions and limitations. Additionally, there is the matter of how long the person can do certain things. If they can't do certain things required by the relevant job(s), they certainly may be disabled. If they can't do them with reasonable continuity, i.e., full-time, they may be disabled.

The determination of whether or not a person is disabled may also involve consideration of the earnings of other proposed jobs, whether that are actually available in the area and whether such employers

would actually hire a person with the Client's conditions, restrictions and limitations for such a position. The vocational consultant can help with whether the Client is reasonably qualified for and could perform such other job(s), the earnings of such jobs and can compares the Client's restrictions and limitations to the duties of the relevant job(s).

There are forms that are commonly requested and filled out in this area. Some doctors are unfamiliar with the forms and the process and are sometimes understandably skittish. Forms prepared by insurance companies and plans can sometimes be "tricky." An experienced lawyer can interface with the doctors, and help explain things to them, in a friendly manner and make sure the forms and how they are filled out accurately depict the Client/Patient's situation. Documenting things on the appeal can help demonstrate entitlement to benefits where deserved and avoid lawsuits.

Additionally, policies and plans sometimes try to add twists to how totally disabled is defined, some of which may certainly not be legally valid. A knowledgeable lawyer can help spot tricks and illegal twists/deviations of policy language and legally accepted definitions. Since a Client can have a number of conditions and be seen by a number of doctors, a knowledgeable lawyer can also help by compiling and tying all the conditions together.

Second, many insurance policies and plans obtained through work provide for an administrative appeal of any denial or termination of benefits. Internal appeal or arbitration prior to filing a lawsuit may be required pursuant to the plan and the law, which, in such cases, is likely ERISA. In other words, no appeal could mean no lawsuit. If the Client hasn't already hired an attorney, he or she should hire one immediately upon the denial or termination of benefits, in order to have the lawyer prepare and present the appeal. A good appeal may result in the reversal of the denial, or termination and the reinstatement of benefits, without a costly lawsuit. The lawyer the client hires should have a track record of successful appeals. The reason it is important to hire knowledgeable counsel immediately is that there is generally a short time to prepare and submit the appeal and gathering, assembling, reviewing and summarizing the policy or plan, claims file, medical records and job description, talking to the doctors and vocational consultant and preparing the appeal takes time.

Third, be aware that ERISA-governed claims and lawsuits contain many surprises. The standard of judicial review might be deferential to the plan administrator. In other words, a lawsuit might not be decided based on whether the Client deserves benefits under the plan or policy, but whether the plan's decision was so clearly erroneous as to constitute an "abuse of discretion." That makes a good, lawyer-prepared appeal that much more important; a knowledgeable lawyer can help spot and point out errors.

Additionally, the evidence in a lawsuit may only consist of the "administrative record," i.e., those records in front of the decision makers at the time of the decision on the appeal. If the Client hires a lawyer after the appeal is denied, that lawyer might not be able to introduce new or additional medical and/or vocational evidence that would help establish the Client's case. Ironically, the absence of a good record might make it harder to find an attorney to take on a lawsuit and might hurt the Client's chances of prevailing in one. A knowledgeable lawyer can help a Client make a good record while there is still time, in the process of handling and presenting the Appeal.

Competent representation at the time of the internal appeal is crucial, as that may be the chance to make a good record and obtain benefits without a lawsuit. There are time limits on how long the Client has to pursue an appeal after a denial or termination of disability benefits in the ERISA context and these can be, and usually are, significantly shorter than the time periods for ordinary civil cases. It is important to read the plan and the letter denying or terminating benefits. The time to see a knowledgeable and experienced lawyer in a disability coverage case is early and definitely no later than immediately upon that initial denial or termination of benefits, when the Client still has time to appeal.

© Mark E. Hancock 2014

Mark E. Hancock is an attorney with offices in Ventura, California. He handles claims and appeals for long term disability benefits under both private policies and plans and group policies obtained through work and has successfully obtained long term disability benefits for many clients, including doctors, business executives, and insurance company claims adjustors.

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