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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.