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Friday, June 12, 2015

What’s The First Thing to Do When you LTD or other ERISA Claim is Denied? Get the Claim File!

Throughout this blog, I have discussed the claim file in discussing other topics.  But, I’ve never stepped back and discussed what it is, what ERISA requires regarding the claim file, and why it is important that you get it.  

I was reminded of this when I was speaking to a lawyer pursuing an appeal of a denial of long-term disability benefits in Fairfield County, Connecticut.  He isn’t a Fairfield County ERISA attorney, but he is an accomplished lawyer in all respects.  I found out that he was finishing an appeal, but hadn’t requested a copy of the claim file.  As I’ll discuss below, the claim file is crucial to any LTD benefit appeal.  If this lawyer didn’t know about it, I figured it was important to be explicit about the significance of the claim file on my blog, which is intended for an audience of non-lawyers.  

You have an absolute right to get a copy of your claim file under ERISA if any adverse action is taken regarding your claim, such as a denial.  You should do it immediately when you get the denial.  The denial letter should advise you of your right to get a copy of the file, and whom you have to write to get it.  If it doesn’t, send the request to the person who sent the denial letter.  You must request it in writing, but you should follow up by phone a few days after you send the request.  I think that sometimes requests for claim files are placed on the corner of a desk, and stay there unless someone follows up.  Be careful to review the letter you get back along with the claim file.  Some companies will construe a request for a claim file as an appeal.  That is a problem, because then time deadlines start running, and you won’t have enough time to get medical records, reports or tests done.  If the letter you get back says that you have appealed the denial, make sure you write the insurer that you are not appealing the decision at this point.

The claim file is the record of the insurance company’s activities about any ERISA benefit claim.  As you might expect, it has copies of all correspondence to and from the insurer, the claimant, the claimant’s doctors and other medical providers.  It also has all the communications between the insurer and the doctors it hires to review your claim, the deliberations of the insurer’s internal medical reviewers, and any medical providers it hires to conduct an independent medical exam of your claim.  It includes the insurer’s internal deliberations, including notes of meetings where your claim was discussed, and internal emails discussing the strategy for reviewing your claim.

It would be hard in a single blog post to list all the ways the claim file can support your claim, but here are a few of them:

  • You can find out the name of the doctors who conducted the file reviews and IMEs, so you can determine if they are qualified to give an opinion on the medical condition at issue.  You need to know if the insurance company doctor who rejected the opinion of your board-certified rheumatologist on the Yale Medical School faculty with many published articles on fibromyalgia, is a family medicine doctor employed by Unum who last practiced 10 years ago in rural clinics in Maine.
  • Reports obtained by the insurance company may help you.  I found one file where the insurance company sent the insured to a functional capacity evaluation that found he couldn’t do the job, and the insurance company disregarded the report.  If I hadn’t seen the claim file, I would have never known that.
  • You can find medical records that support you that the company ignored.  Even without the claim file, you’ll have access to the record through your doctor.  But, it is a good argument to show that the decision was not made in good faith if the insurer is ignoring evidence helpful to you that is in its own file.
  • You can find out what records were given to the doctor who conducted the Independent Medical Exam, or the physician reviewing your medical records.  Sometimes they don’t give the entire medical record, culling out materials that would be helpful to you.  
  • You may see that the insurer decided to deny the claim even before obtaining any tests or file reviews to justify the decision, which again goes to show that the decision was not made in good faith.

There are many other ways in which the claim file can be used to mount a successful appeal, and put you in the best shape if you have to go to court on your claim.   Get the file first thing, and you, or your ERISA benefits lawyer, can start preparing your appeal without delay.  And, if the lawyer handling your LTD benefit appeal hasn't obtained a copy of the claim file, well then . . .

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