Yearly Archives: 2017

28 11, 2017

Pain and Long Term Disability Claims

By | 2019-10-09T18:32:55+00:00 November 28th, 2017|Uncategorized|Comments Off on Pain and Long Term Disability Claims

Pain can be caused by any number of conditions including spinal column anomalies, headaches, gastrointestinal issues, traumatic injuries and/or undiagnosed conditions.

When pain is the predominant symptom, issues that must be kept in mind are other-caused symptoms, policy coverage and proof of disability.

Medically, pain may cause other symptoms such as fatigue due to interrupted sleep, lack of focus, depression and/or anxiety. All of these combine to cause disability.

With respect to insurance policy coverage, be aware some policies limit coverage to two years for a disability based on pain. These policies limit coverage for pain as it is the type of symptom that is not provable by tests or imaging studies.

As important, the proof of disability is made more difficult because there are no tests or imaging studies which detect pain or the extent of pain experienced by an individual. Simply submitting medical records from your doctor(s) will not be enough to secure disability benefits.

When pain is a significant symptom, it is very important to have a supportive medical provider to provide evidence of your disability. Repeated notations in the medical records regarding pain and other-caused symptoms are very important. Clinical examination may reveal indications of pain such as spasms, muscle tenderness and/or decrease in range of motion.

There also may be tests to show the fatigue pain causes, or to show a decrease in range of motion, inability to lift and/or inability to sit/walk for a required period of time. Other tests may demonstrate the impact pain has on an individual’s cognitive abilities and mental status.

Since pain is difficult to prove, a claimant should collect as much information as possible such as maintaining a pain/fatigue log by day recording the time, degree and remedy used to treat the pain/fatigue. Information of a similar nature from friends, family and business associates may also be helpful as proof because observation is made over an extended period.

14 04, 2017

ERISA Long Term Disability Benefits

By | 2019-10-09T18:33:05+00:00 April 14th, 2017|Uncategorized|Comments Off on ERISA Long Term Disability Benefits

Employer provided disability insurance benefits, which are governed by the Employee Retirement Income Security Act (ERISA), pay a portion of a claimant’s earnings if they cannot work because of illness or injury. Typically, the first six months of disability insurance benefits are paid by what is referred to as short term disability (STD) insurance.  The benefits paid thereafter, typically until the age of 65 are paid by long term disability (LTD) insurance.

The ERISA claim regulations apply to both STD and LTD insurance benefits. While STD insurance and LTD insurance pay benefits, the terms under which such benefits are paid and calculated differ significantly.

Both STD and LTD insurance benefit claims are started with a notice of claim that must be given within a certain period of time that is stated in the insurance policy. Typically, the process of providing notice of claim starts with an inquiry to the employer’s human resources department. The claimant should receive a three-part form or be provided with a web address to file the claim. On the form, one part is filled out by the employer, one part by the claimant’s doctor and one part by the claimant. See, Frequently Asked Question (FAQ’s) No. 11. This form is sent to the insurance company. Within a specified period, the insurance company should contact the claimant for the continuation of the claim process. If the insurance company does not contact the claimant, the claimant has an obligation to provide additional information required by the policy. See, Common Issues in ERISA Claims II 1a.

Once a claim is made, the insurance company has a certain period of time to make a decision. Special circumstances allow the insurance company to obtain an extension of time. If the insurance company determines to pay the benefits, it will issue monthly checks for the STD or LTD benefit in the amount calculated according to the terms of the policy. If the insurance company determines that it will not pay the benefits (See, FAQs Nos. 23 and 24.), it must issue a denial letter with the items required by the ERISA regulations. See, FAQ No. 13.

The denial letter, among other things, must advise the claimant that the claimant has 180 days to appeal the denial determination and identify the information necessary to perfect the appeal. The additional information typically includes office visit notes, doctor letters, tests and/or films.

Once the appeal is filed, the insurance company has a specified period of time and extensions to make a determination. It may reverse its decision and start to pay benefits. It may uphold its decision to not pay benefits. Some insurance companies allow for a second appeal which is governed by the same regulations for the first appeal.

If the claimant is not willing to accept the adverse benefit determination, then the claimant must file suit. This suit is generally filed in a federal court. The case is presented to the judge without a jury and is limited to the evidence in the administrative record with respect to the merits of the claims. See, Common Issue in ERISA Claims, II 2E. The case typically is decided on the basis of whether the insurance company abused its discretion in denying the benefits. See, FAQ No. 17. The conflict of interest of the insurance company is a factor that is considered by the judge.

The time involved in an ERISA STD or LTD insurance benefit claim can be substantial and will tax the financial endurance of any claimant. From the date a claim is filed, it may take the insurance company 90 days to make a determination, the claimant may take 180 days to file an appeal, the insurance company may take 90 days to reach a decision, if necessary, suit is filed with a trial date of 13-15 months, a decision by the judge may take 6 months and an appeal to the court of appeals adds 18 to 24 months. The entire process may total 43 to 51 months.

The definition of disability is usually the same for both STD and LTD insurance benefits. See, FAQ No. 16. Some of the differences between STD and LTD benefits, in addition to the duration of the benefits, are very significant. STD insurance benefits may be calculated based on 100% of the claimant’s weekly earnings with no offsets. LTD benefits are typically 60% of the claimant’s monthly earnings offset by numerous sources of other income, most notability Social Security Benefits. The LTD definition of disability changes at a point, typically 24 months, from using your own occupation as the criterion to any occupation that the claimant can perform based on their education, training and experience. So the promise to pay 60%, if you cannot do your job, is not necessarily the most accurate way to state the benefit amount or the obligation.

The STD insurance benefits claim may or may not be subject to a pre-existing condition clause. The LTD insurance benefits claim is always subject to a pre-existing condition clause which may be avoided in certain circumstances.

The LTD insurance benefits are subject to more defenses to the obligation to pay than STD insurance benefits. One such defense is the limitation of benefits to 24 months for disability based on a mental or nervous condition and/or alcohol/drug abuse. Some insurance policies also have a similar limitation for subjective symptoms which cause disability.

Taxability of the benefits depends on whether the claimant paid the disability insurance with after-tax dollars. In such case, the benefits most likely would not be taxable. If the employer paid or the claimant paid with before-tax dollars, the benefits most likely would be taxable. See, Common Issues in ERISA Claims, II 9.

13 04, 2017

What Are A Law Firm’s Qualifications?

By | 2019-10-09T18:34:05+00:00 April 13th, 2017|Uncategorized, Videos|Comments Off on What Are A Law Firm’s Qualifications?

1) What are the qualifications of the lawyer:

▸ how long has he/she been in practice;
▸ does he/she focus mainly on ERISA long term and short term disability claims;
▸ how long has he/she handled ERISA claims; and
▸ how many claims, appeal and lawsuits has he/she handled.

2) Does the lawyer provide empathetic and compassionate service?

3) When you call, do you tell your story to the attorney or a case screener?

4) Is the attorney available to answer your questions as your claim progresses?

5) What does the attorney charge for the services provided?

ERISA law is very complex and few attorneys practice in this area. An experienced ERISA lawyer can help you file your claim, maximize your evidence and prevent you from making a mistake that could be fatal to your claim.  

ERISA gives the insurance company the upper hand as ERISA does not reward the company if it does what is right nor does it punish the company if it does what is wrong. So the company has no incentive to do what is right. You must be mindful of this when you begin the claim process and not be lulled into thinking that the company is actually trying to help you file your claim or receive your benefits.

Bernard Guerrini has been in practice for 38 years and has handled numerous ERISA claims, appeals and lawsuits. John Thompson has been in practice for 19 years. Most important, the focus of this practice is ERISA long term and short term disability claims. They do not handle any other benefit claims such as Social Security benefit claims, pension claims or veteran’s benefit claims. They do not handle personal injury claims or business claims. They focus their practice on ERISA claims.

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