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Monday, June 1, 2015

If You Make the Same Arguments In Your ERISA Appeal that You Made Before, Get Ready To Lose

When you submitted your initial application for long-term disability benefits, or any other benefit subject to ERISA, you thought you submitted enough to show that you were disabled: 

  • Your claimant statement recited the many things you could no longer do at work or at home; 
  • Your doctor submitted an Attending Physicians Statement outlining how little you can sit, stand, keyboard, lift, etc.; 
  • You bugged your doctors for weeks to get them to produce the medical records requested by the insurance company.   

If your treating physician gave an opinion that you were disabled, how could the insurer disagree?

So, you are shocked when you get the denial.  You immediately start making a list of the evidence the company ignored: the doctor’s opinions rejected for no good reason; the unfair conclusions; your detailed statement about what you could do.  You are outraged at the decision, and you want to insurance company know all the ways it messed up.  If the company just conducted the “full and fair” review that is mentioned in the denial letter, they can’t help but grant you benefits, right?.  So, you prepare an appeal of the denial of long-term disability benefits, pointing out all the things in the materials you submitted that show you are disabled that the company ignored.  

Prepare to be shocked again, because it is almost inevitable that you will be rejected again.  Even if you think you have the best case possible, you have to submit new information for the appeal.  After all, the appeal will be decided by the same company that denied benefits the first time.   The company is not going to change its mind without new evidence, no matter how unreasonable the first denial was.  

ERISA requires that the insurer state the reasons the claim was denied, and what information has to be submitted to prove the disability.  Take advantage of one of the provisions of ERISA that actually helps you!  Use the denial letter to find out exactly what new information you need to submit to have the best chance to prevail in your appeal. 

The types of information you should submit is addressed elsewhere in this blog: get a neuropsych exam; have a functional capacity evaluation done; have your doctor do a new evaluation of your cervical spine to specifically address the issues raised by the insurance company.  The information submitted with the appeal will be different in every case, since it has to address the specific reasons raised by the company for denying the appeal.  And, you certainly will point out the errors the insurance company made in its initial decision.  But, you will discuss it after you present and argue your new information.     

It is hard not to respond reflexively, to defend what you have done, when you receive an indefensible decision by an ERISA plan or insurer. But, step back, take a breath, and figure out what new information you need to submit to address the grounds for denial set forth in the denial letter.  Having an ERISA attorney in Connecticut, or your state, can be a big help in the process in providing the knowledge and experience you need to get the benefits you earned.  

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