danaise2002@yahoo.com

Mail to: danaise2002@yahoo.com

In addition to being a lawyer I am a surgeon with almost thirty years of medical experience. I obtain all the medical records in your case and perform an independent medical research. I analyze your case. I often meet with your doctors to have the best information available. I then present an analysis of your case to the judge arguing not only the legal merits of your case but also present your medical file in its best light. More about me

ESTABLISHING DISABILITY STATUS IN FIBROMYALGIA AND CHRONIC

FATIGUE SYNDROME

 

Do you have group long-term disability coverage

If you do, and you should get sick or hurt, would you rely on that group LTD policy to pay you benefits?

 If you would, don’t count on it. There are three primary reasons why your claim may be denied:

1. You misunderstand the policy language.
2. You are unable to overcome the “hired gun” experts hired by the insurance company to defeat your claim.
3. You are denied by the internal appeal process and need to file a law suit under ERISA.

Unfortunately, the worst time to mount a fight against the big insurance company is when you are disabled and vulnerable. As you read this article, think how you might become better prepared to deal with this potential problem.

Policy Provisions

Disability insurance policies are very specific as to the provisions that need to be satisfied in order to obligate the insurer to pay you benefits. Group policies are designed to limit coverage and the amount of benefits payable. This is done in many ways, including limited definitions of disability, offsets against benefits, as well as significant limitations and exclusions in the policy.

The ERISA procedures set up an "administrative process," which must be satisfied before you have the right to file suit in court. Each policy will provide you with the specific administrative procedure to be followed during the claims process. There are specific time periods within which to submit claims and information in support of claims, as well as when the insurance company (or claims administrator) must decide your claim. If, after you have gone through the internal appeals process, the claims administrator still maintains its "adverse decision," and in effect, you have "exhausted your administrative remedies," you will then have no choice but to file a lawsuit under ERISA.

What is ERISA?

Generally, group policies are subject to the ERISA regulations. The Employee Retirement Income Security Act of 1974 (ERISA) is the federal law that regulates the establishment, operation, and funding of most non-governmental employee benefit plans, including long term disability plans. ERISA was adopted to protect the benefits of plan participants and beneficiaries. Unfortunately, due to unartful drafting by Congress, the courts have often defeated the purpose of the act and have provided protections to insurance companies at the expense of participants and beneficiaries. ERISA is now used by insurance companies as a sword in an attempt to deprive participants and beneficiaries of meaningful judicial review.
For example: The "treating physician rule" was originally borrowed from Social Security law, as used in Social Security disability cases. The rule is based on the premise that the "treating physician" is in a better and more informed position to render opinions and thus the Court must give these opinions controlling weight. Unfortunately  the US Supreme Court on May 27, 2003, in Black & Decker Disability Plan v. Nord, held that "ERISA does not require plan administrators to accord special deference to the opinions of treating physicians," thereby effectively ending the use of the treating physician rule in ERISA-governed claims.
After the claims administrator considers the information of record, he or she makes a determination. The Claimant has the burden to prove that the determination was "arbitrary and capricious." This is a difficult standard to meet. Usually the Court simply reviews the administrative record and determines whether or not there has been an "abuse of discretion" relative to the claims determination.
Take for example the Court’s decision in McGee v. YUM Brands, Inc., 2006 WL 2631976 (W.D. Ky. Sep. 12, 2006). Applying the arbitrary and capricious standard of review, the federal district court ruled in favor of the plan. The court analyzed the case as follows:
“VPA obtained three separate evaluations: the IME performed by Dr. Changaris; the Functional Capacity Evaluation performed by Healthsouth, and the Employability Assessment performed by CorVel. The IME concluded that Plaintiff was incapable of light duty, but it did not rule out occupations requiring only the sedentary physical demand level. The Functional Capacity Evaluation concluded that Plaintiff was capable of performing occupations requiring a sedentary physical demand level, and the limitations it found were consistent with those recommended by the IME. Finally, the Employability Assessment concluded that Plaintiff could find jobs with low physical demands. These evaluations strongly support VPA's decision to terminate benefits under the Plan's specific guidelines. Plaintiff does not argue that this Court should ignore or completely discount these evaluations due to any independent circumstances. Plaintiff's only submission in support of her claim for continued benefits was a letter from her treating physician dated January 26, 2005, stating his belief “that the patient is totally disabled.” However, her treating physician provided no explanation whatsoever for the opinion that she was totally disabled and his opinion is not stated to a reasonable degree of certainty within the medical profession. Plaintiff does not make a persuasive argument that this brief letter overcomes the weight of Defendant's evidence supporting its decision to deny benefits.”

Since they no longer have to use the treating physician rule, the insurance carrier relies on its team of internal medical consultants and "experts" to address the claimant’s medical documentation. Without strong objective documentation and testing, it could be virtually impossible to overturn the group carrier’s decision to deny or terminate a claim.

The success of a long term disability claim is dependent on proving that your symptoms are disabling. A diagnosis of a particular illness is not enough. You will need to establish that the symptoms you suffer from prevent you from performing the duties of your occupation. This requires the expertise of a physician and a lawyer to put together and submit objective evidence, such as MRI's, scans, and other test results,

Your long term disability claim case manager is not your friend, your advocate, or your confidant. Don’t be fooled. No matter how empathetic, friendly, or helpful your case manager appears to be, your case manager is your adversary. What you say, can and will be used against you, not only in your claim, but in any legal proceeding in the future.

What should I do once I begin the application process

First, it cannot be overemphasized that it is never too early to seek professional legal help. Once your application and doctors letters are submitted, you are effectively bound by them. Legal advice you receive before you apply for benefits is often the most valuable.

Second, the application forms should be filled out completely and carefully. If you cannot type the forms, you should at least complete them neatly. This is especially true of the forms completed by your doctors and employer. Before sending in the forms they should be proofread and a copy should be retained.

Third, in addition to the form that your doctors fill out, it is advisable to have your doctor write a narrative report describing your disability.
Your doctor's letter(s) should contain the following:
(1) a statement of your relevant medical history;
(2) a statement confirming your diagnosis;
(3) an explanation of your disease or injury;
(4) an opinion as to whether you are totally disabled (this should be tied into how total disability is defined in your plan, i.e. your job or any job);
(5) an explanation as to why you cannot do your job -- explain how your specific symptoms prevent work;
(6) cites to objective evidence in support of disability, e.g., results of tests; and
(7) a statement of your prognosis.

You should keep copies of each letter you send to and receive from the plan and insurance company. Save the envelopes of all letters received from the plan and insurance company.  All letters that you send should be sent certified mail, return receipt requested. All attachments should be described in your cover letter. If not, you have no proof that a particular attachment was sent to them. You should send a letter to the plan or insurance company confirming the content of any telephone conversations that you have. 

Appealing Claims Denials

Under the regulations issued by the Department of Labor, a claimant has up to 180 days to appeal the denial. We urge you to contact an attorney as soon as possible because it often takes the full 180 days to prepare a comprehensive appeal. We prepare appeals as if they were cases in court. We believe that by submitting a comprehensive appeal, we show the insurer that we are serious in pursuit of the benefits, and have a better chance that the insurer will grant your appeal.
If you do not submit a piece of evidence to the insurer during the claim and/or appeal process, that piece of evidence will be inadmissible in a future litigation in court. Therefore, we operate under the premise that there is no second chance. If you want to submit a piece of evidence in support of your claim, you have to do it during the appeal process.

What we do:
1. Demanding Documents from the Insurance Company. We write the insurer demanding a copy of: the plan; the policy; the SPD; the claim file; all documents relied on by the insurer in denying the claim; any internal guidelines used by the insurer; the reports of all medical and vocational reviewers; audio or videotapes of the claimant; and notes of any telephone conversations.

2. Demanding Specific Reasons for Denial. We write the insurer demanding that they provide us with a more specific description of the reasons for denial. Often the initial denial letter only states that there was insufficient objective evidence in support of your claim.

3. Gathering Records. We write your doctors requesting copies of all of your medical records. Often the insurer does not request your doctor's treatment notes prior to their denial. These notes may corroborate your symptoms. It is important that a complete set of your medical records be obtained.

4. Additional Testing. Often there has been insufficient medical testing done to support your claim. In such a case, we help you obtain the proper tests by your treating physician or refer you out to a medical specialist. For instance, individuals with Chronic Fatigue Syndrome and fibromyalgia do not have " objective testing " of their disease but special function testing by   neuropsychological testing  may show cognitive deficits, and testing by a physiotherpaist may detect functional impairment preventing physical activities. We refer such clients out for in order to obtain objective proof of such deficits. We work with a network of disability physicians who treat and test our claimants and provide written reports.

5. Medical Reports. We procure opinion letters from your treating physicians explaining in detail why you are disabled. We also send your doctors customized questionnaires so that your doctor can provide very specific opinions about your inability to work. We also help your doctors address the concerns raised by the insurer in its denial letter. To be successful in the appeal process, every concern raised by the insurer must be addressed. Nothing can be ignored.

6. Client Affidavits. We spend a lot of time drafting a comprehensive affidavit for your signature. The affidavit is your opportunity to describe the duties of your job, to describe your symptoms, and to explain why your symptoms prevent you from doing your job. We want the affidavit to make your case come alive, to let the reader know who you are, and how your symptoms have affected your life, both at home and at work. It is much harder to deny your claim when you are seen as a living breathing individual, rather than a claim number.

7. Client Videotapes and Photos. On occasion we procure and submit videotapes and/or photos of our clients, particularly when they suffer from a disability that is apparent when seeing them in person. The saying is very true that "a picture is worth a thousand words."

8. Corroborating Statements. Most of our clients have family, friends, and coworkers who have observed their disabling symptoms. We procure statements from these individuals as an added way of corroborating your symptoms. Statements from coworkers (especially bosses) are particularly helpful because they provide direct proof of your inability to perform the duties of the job.

9. Scientific Articles. We often conduct research of scientific articles and journals to help provide additional support for your condition. We often seek the assistance of your treating physician in this research.

10. Once all of this information and proof is gathered, we prepare a comprehensive appeal letter arguing why you are totally disabled and attacking all of the reasons for denial mentioned by the insurer. Although the appeal is formatted in the form of a letter, it is in every sense of the word a legal brief, complete with case cites, legal argument, and citations to the medical evidence.
 

Acknowledgement
The above article relied in part on excellent articles by Mark Seltzer and Riemer & Associates. For more detailed information please visit: http://physiciansnews.com/law/1103.html and http://www.riemerlawfirm.com