It is not uncommon that an initial claim for Long-Term Disability (“LTD”) is denied. This can be for a variety of reasons, most commonly including: lack of coverage, lack of medical evidence, lack of objective medical evidence, or a determination that, despite medical evidence of disability, the illness or injury is not significant enough to preclude the claimant from performing their job.
Regardless of the reason for the denial, the claimant has a right to appeal, usually within 180 days of the date of the denial. When the denial is based on something other than lack of coverage, what kind of things can be helpful in ensuring that the appeal will have a higher degree of success?
Here are three things a claimant can do to present their case:
1. Declarations
When appealing a denial of a claim, we have found it very important that the claimant, as well as his or her close family and friends, prepare statements in support of the appeal. For the claimant, it is an opportunity to tell their story. In claims subject to the Employee Retirement Income Security Act of 1974 (“ERISA”), there is no right to a jury trial, no witness testimony, and the case is decided purely on what is contained in the “administrative record” which is all the documents and evidence based upon which the initial decision (and later, the decision on appeal was made.) The declarations are especially important if the appeal is unsuccessful and a lawsuit is filed because they give the judge an opportunity to learn about the case in the claimant’s own words, as well see what the claimant’s friends and family have observed.
Some of the things that can be explained via a declaration include, among others:
- education and employment history;
- the job and the duties the claimant was performing before developing a disability;
- the symptoms of the disabling condition;
- medications and their side effects;
- the hobbies and activities that the claimant used to enjoy but can no longer do due to disability;
- the effect of the symptoms on daily and social life; and
- how the condition prevents the claimant from performing their job.
The declarations of friends and family are also useful, as they can demonstrate the claimant’s deteriorating condition and loss of functionality.
2. Functional Capacity Evaluations
When the disability is primarily physical in nature, a Functional Capacity Evaluation (“FCE”) is a useful tool that can objectively verify a claimant’s ability to perform various tasks, including sitting, standing, walking, fine manipulation, lifting ability, and other postural activities such as bending, stooping, squatting, or kneeling. In most cases, the sit/stand/walk and fine manipulation abilities are especially important to assess.
These evaluations are typically performed by Physical or Occupational Therapists over a course of one or two days. These in-person assessments are helpful because they objectively confirm a claimant’s ability, or lack thereof, to perform a physical activity that is required by their job, and what their restrictions and limitations are.
3. Vocational Analyses
In addition to the declarations and FCEs, a vocational assessment can be helpful in establishing disability. However, this vocational evidence is most useful when a claim has been approved under the “own occupation” standard of disability, for a period of 12, 24, or 36 months (the 24 months being the most common), meaning that the insurance company determined that the claimant cannot perform his or her own occupation.
After the expiration of the “own occupation” period of disability, the definition of disability changes to “any occupation”, and the claims are often terminated at this stage because the insurer determines that the claimant can perform some other occupation. The letter terminating benefits will usually include a list of alternative occupations that the claimant can allegedly perform.
A thorough vocational analysis, which often includes a Labor Market Survey, becomes crucial at this stage of the case. The Vocational Rehabilitation Counselor (“VRC”) or a Certified Rehabilitation Counselor (“CRC”)reviews medical records, evaluation reports, policy provisions, and other evidence to determine whether the insurer was correct in determining that the claimant can engage in the occupations the insurer identified.
Unsurprisingly, often, the insurance company’s decision is wrong and flawed.
In addition, the VRC or CRC can conduct a Labor Market Survey, whereby individual employers in proximity to the claimant’s residence are contacted directly to determine the availability of a job and whether someone with the claimant’s restrictions and limitations would be considered for hire.
Oftentimes, when a claim is transitioning from “own” to “any” occupation standard of disability, there is an earnings requirement, meaning that the claimant must be able to earn a certain percentage of their pre-disability earnings (usually between 60 and 80 percent, meaning that, if the claimant’s pre-disability earnings were $100,000, he or she must be able to earn $60,000 to $80,000 in a different occupation, depending on the policy language). Thus, it is very important to be aware of this factor and ensure that the alternative occupations would enable the claimant to earn at least that much.
Of course, the above list is not exhaustive, and there are many other things that can be done to bolster an appeal of denial or termination of LTD benefits, depending on the illness or injury. Kantor & Kantor attorneys are seasoned experts in this area of insurance law and know what to do. We understand what you are going through and can provide the right legal guidance to get your claim resolved. Contact us today for a free case evaluation on your long-term disability claim: 877-783-8686
