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Tuesday, October 25, 2016

Proving Disability in Internal ERISA Benefit Appeals: Why It Is Easy to Get it Wrong

In my ERISA benefits practice, I often have the opportunity to review the work other lawyers have done in the initial internal appeal with the insurance company.  For more background on why the internal appeal process is so important, you can see this article from my firm’s website.  Most often, the lawyers have not done many ERISA internal appeals.  They may think that long-term disability appeals are not really that different from other areas where inability to do a job is an issue, such as a Social Security Disability Income denial or workers’ compensation.      

  • In one way, they are right: in each area, the claimant must show he or she can’t work, so the burden of proof is on the claimant.


  • What is required to meet the burden of proof in the three areas is fundamentally different.  Evidence that can win a workers’ compensation or SSDI case can be a loser in a disability insurance case.  

In both Social Security and workers’ compensation cases, once a claimant submits a certain amount of evidence, the effective burden of proof is shifted:   

  • Social security disability income appeals have a “treating physician rule:” once the claimant submits an opinion of disability from a treating physician supported by medical evidence, the claimant generally wins.

  • In workers compensation, a doctor’s statement that contains the magic words “I state with a reasonable degree of medical certainty,” that a disability resulted from a workplace injury may be enough to force the insurance company to prove that the opinion is wrong.

Of course, the doctors’ statements in these areas have to be supported by the medical records, but in many cases the treating doctor’s statement can be short and conclusory.

Claimants in ERISA cases don’t get the benefit of these presumptions: while a plan has to have some reason to reject a treating physician’s opinion, there is no treating physician rule that requires deference.  A short doctor’s letter that can win a workers’ compensation case can probably be safely ignored by an ERISA plan that has a contrary opinion from a doctor who has only reviewed medical records and has not examined the patient.  

Two aspects of ERISA make it more difficult to establish disability than under SSDI or workers’ compensation:    

  • The first is the basic ERISA principle that the language of the plan documents governs almost everything.  To a great degree, the plans get to establish what a claimant must show to be entitled to benefits, and understandably, they do not make it easy.


  • The second is the standard by which a court is likely to review the benefit denial.  Due again to language in the plan, almost every benefit denial reviewed by a court is going to be arbitrary and capricious review, which means the court is supposed to uphold the denial if there is any rational basis for the decision. So, what happens when a lawyer submits a doctors’ letter that could win a workers’ compensation case?  The court is likely to hold that a plan that relies on a medical file review paid for by the plan rather than a short letter stating the doctor’s opinion has a rational basis for the denial, and the claimant loses.   

In many states, it can be hard to find a lawyer who is experienced with appealing long-term disability denials, either for private insurance or group plans governed by ERISA.   In Connecticut where I practice, there are only a few experienced long-term disability insurance attorneys.  But, finding an attorney who knows how different it is to prove an inability to work in an ERISA case can make the difference between winning and losing.

Tuesday, September 13, 2016

What Do We Submit for an Internal Appeal With the Insurance Company?

In this blog, I have frequently discussed the importance of the internal appeal with the insurance company.  I haven't discussed what we commonly submit for internal appeals, though.  I recently posted an article to my new firm's website discussing what I commonly put in the letter, and the reports and medical records I submit with the letter.  As you can see, a lot goes into an effective appeal of a long-term disability denial.

Monday, August 29, 2016

In Introduction to Why the Internal Appeal is Important in ERISA Benefit Denials

As you may know, I moved my Connecticut LTD and ERISA practice last month to Zeldes, Needle & Cooper in Bridgeport, I've been working on posting articles to the new firm's web site.  Today I posted an article discussing the administrative appeal process and why it is important.  It is a good general introduction to the issues involved.  As the article notes, the insurance company won't tell you one of the most important things about the internal appeal process: that you probably won't be able to submit any new information in litigation that you haven't submitted during the appeal process. That is why is can be important to have an attorney during the appeal process to make sure you have the best chance to get the result you want in the appeal, and to put you in the best position to win in court if you don't win the internal appeal.

Thursday, July 21, 2016

Even Ex-NFL Players Have Trouble Getting Disability Benefits for Post-Concussion Impairments

The New York Times has an article this week about the lawsuit that Haruki Nakamura brought against Lloyd’s of London for wrongfully denying disability insurance after his doctors, and the NFL, told him he could no longer play in the NFL.  While my clients are more likely to sit at a desk and work at a computer all day than tackle an NFL running back, it is remarkable to me in reading the complaint that Mr. Nakamura confronted the same issues as my clients.  The post would be far too long if I addressed all the similarities, but I will note a couple of points:

  • Mr. Nakamura alleges that Lloyd’s imposed “virtually impossible” procedures, making repeated requests for the same documents, losing documents, and distorting medical records.  If the procedures were virtually impossible to fulfill for someone who made a million dollars a year and had a personal assistant to help deal with the insurance company , imagine how easy it is for an insurance company to impose absolutely impossible requirements on someone who made $75,000 a year and has a working spouse.  As I tell my clients, the courts are remarkably tolerant of insurers requiring endless recertification, updated medical records, and independent medical examinations.  Even if we think they are grossly unfair, we have to do the best we can to comply, as the insurance company will use any failure to comply as a basis to reject the claim, and we can’t count on a federal judge being sympathetic to the procedural difficulty of complying with the request.
  • The complaint shows how hard it can be to prove post-concussion syndrome and other conditions that result in cognitive impairments.  As regular readers of this blog know, I have frequently discussed how it is difficult to get insurers to accept cognitive impairments without a neuropsychological exam.  Mr. Nakamura didn’t get such an exam, and it was one basis for the denial.  Neuropsych exams are not always a help, though.  They are a rough measure that may not show the slight decreases in cognitive ability that can make it impossible to perform a cognitively demanding job like a bond trader, so Mr. Nakamura may have decided not to risk a neuropsych that was not helpful.  But, it shows how important it is to have a comprehensive strategy to demonstrate disabling cognitive issues.  I always make sure to emphasize and prove any psychological or physical impairments to make up for any difficulties in proving the cognitive side.
  • The case also shows how willing insurers are to ignore the opinions of highly-credentialed treating physicians.  Mr. Nakamura’s doctor was “an internationally renowned expert in sports-related concussion” who had established the first and largest research and clinical program on the issue.  The doctor on whom the insurer based the denial is employed by “Triangle Forensic Neuropsychiatry,”  and has no particular expertise in concussions 
  • Due to the strong medical community in Fairfield County and Southern Connecticut available to support LTD disability appeals, I am fortunate to work with some of the most prominent doctors in their fields.  The insurance companies, however, are happy to rely on anyone with the right initials after their name.  One insurance company rejected the opinion of a national authority on multiple sclerosis who was a full professor at Yale in favor of an opinion from a family medicine doctor whose only clinical experience was ten years of work in a rural Maine medical clinic.  Again, the way to deal with this is a comprehensive strategy to create an overwhelming case for disability.
The lesson of the Nakamura case is that insurers are equal-opportunity abusers, happy to abuse the rich and famous as well as poor and the middle class.  Make sure you are not alone on this journey by finding an experienced, sympathetic and aggressive lawyer who can create the comprehensive strategy necessary to succeed in long term disability appeals and long term disability litigation.