FAQ: When should I get an attorney involved in my disability/life insurance/pension issue?

                There are three common times when you should think about involving an attorney in your ERISA employee benefits dispute or claim: (1) when submitting an application for benefits, (2) after the denial of benefits, and (3) at the commencement of litigation. Here is why you might choose to retain an attorney at any one of these times.

                You might decide to hire an attorney to submit your application or claim for benefits. This is a good strategy if you have a complicated situation or issue that may affect your application. One example might be if you are applying for long-term disability benefits after being terminated from employment or quitting from your job. Another example might be if your disabling condition is complicated your application for disability benefits may require some explanation as to why you can no longer perform you job. Applications are time consuming and complicated, so sometimes people hire an attorney to handle the application because he or she does not have the time or energy to devote to making sure the insurer receives all the information necessary. As long as your benefit plan is governed by ERISA, you will be allowed a chance to appeal any decision made by the plan administrator that is adverse to you, so many claimants choose to apply for benefits on their own and then hire an attorney only if they are denied.

                The most common time individuals hire an attorney is after he or she has had a pension, life insurance, or disability benefit denied. The attorney can then submit an administrative appeal for the claimant. An administrative appeal is a written appeal to the plan administrator explaining why the decision to deny benefits was wrong, and submitting any new evidence in support of the claim. An administrative appeal is VERY important, because once it is submitted you are frequently no longer allowed to submit any new evidence to support your claim to the insurer. Generally, it is best to consult an attorney when submitting your administrative appeal, so you can be sure the evidence in the administrative record (everything submitted to the plan administrator by you, and everything the plan administrator gathers or creates on its own in regards to your claim) is as complete as possible so the insurer can make a full and fair review of your claim for benefits.

                Once you have completed all your administrative appeals, the only option to pursue your case further is usually to bring a lawsuit in federal court. At this phase, you should almost always hire an attorney to represent you in your case. ERISA cases have complex legal issues like how much deference should be given to the insurer’s decision. It is best to have good legal representation once litigation begins.

Helpful Hints When Applying For Long or Short-Term Disability

Applying for disability benefits can be stressful. You’re sick and unable to work. You’re not sure about your financial future. You have forms to fill out, doctors to see, and decisions to be made. But being careful and thorough when filling out your application for disability benefits can prevent further hassle down the road because it improves your chances of being approved right away, and avoiding a lengthy and time-consuming appeal.

            Here are some helpful hints for filling out an application for short or long-term disability benefits. If you are still denied disability benefits after your application, we recommend speaking to an attorney experienced with appealing disability denials before appealing the decision to insure you know all your rights regarding administrative appeals.

#1. List all your health conditions

            Many people list only the one condition they feel disables them, forgetting the four or five other health issues they have that all interact to create the full picture of their health and abilities. It is important to list all your conditions so the insurance company will have all the information necessary to make its decision.

            If your disability is primarily physical, do not forget to list any psychological issues you have such as depression or anxiety in your application as well. The same goes for if your condition is primarily mental; do not forget to list your physical issues as well.

            Do not forget conditions such as: chronic pain, cognitive issues (problems with memory, not thinking clearly, or thought processing), physical or mental fatigue, migraines or chronic headaches, and other issues you may consider peripheral to your main health concern. The co-morbid effects of how these conditions interact and affect each other must be considered by the insurer.

#2. Provide All Relevant Medical Records

            Remember you are ultimately responsible to prove that you meet the definition of disabled in the policy and are therefore eligible for benefits, so you must make sure the insurer gets all the relevant medical records. When we as attorneys help claimants apply for benefits, we generally attach all relevant medical records to the application – we do not wait to see what the insurer will ask the claimant to provide. Insurers tend to request far fewer records than we provide. The insurer will request them from fewer doctors and for a shorter span of time. But it is not the insurer’s responsibility to get this information. So be proactive and make sure all medical records relevant to your health conditions are in the insurer’s hands when it reviews your claim.

#3. You Can Add Supplemental Pages

            A disability application is usually only one or two pages long – not nearly enough space to adequately explain a disabled worker’s numerous conditions, symptoms, and why he or she cannot work. Do not feel constrained by this lack of space. Simply write “See supplemental pages” in the form, and attach a type-written page fully and thoroughly answering the question asked.

#4. Explain Your Symptoms, Restrictions, and Limitations

            While it is important to list your diagnosed conditions, generally the insurer is most interested in what symptoms you actually experience, and how they prevent you from working. List all your symptoms, how severe they are, and how frequently you experience them. Then explain what specific functions you cannot perform at work because of these symptoms. Compare these two examples:

1.      I have severe migraines and my doctor says I cannot work.

2.      I have continuous migraines that have not stopped for three months. The pain fluctuates – 4 days a week the pain is a 6 on a scale of 10, and 3 days a week the pain is an 8 or 9 on a scale of 10. When the pain is above a 7, I am unable to leave my room. I turn all the lights off, pull the shades, and lay in the dark unable to sleep because of the pain. I am unable to leave my room, much less go to work and perform my duties. Also, see my neurologist’s statement supporting this application.

The second explanation explains how bad the pain is, how frequently it occurs, and why it keeps the claimant from working.

#5 What Your Doctor Needs to Say

            What your doctor says is key to whether you will receive benefits. It is important for your doctor to describe the frequency and severity of your symptoms, any measurement she or he has done of your symptoms and limitations, and list specifically what you cannot do and why. Compare the following:

1.      Betty can no longer work due to her chronic pain.

2.      I have been treating Betty for 10 years, and her chronic hip and back pain has gotten progressively worse. We have treated her with X, Y, and Z treatments which have not helped. According to the testing we have done in my office, Betty is unable to sit for more than 1 hour without being in extreme pain. She may then shift from sitting to standing, which helps for a short time. In a 12 hour period, she cannot sit for longer than 3 hours maximum.

This second example gives more detailed descriptions of what activity Betty has difficulty doing (sitting) and what her restrictions/limitations are for that activity (1 hour at a time, 3 hours maximum in one day.)

 If you have questions about how to gather necessary information, how to answer specific questions, or need help filling out the application, we have experience with the long and short-term disability application process and would be happy to speak to you. Contact the Law Office of Katherine L. MacKinnon to find out if we can help.