FAQs
Below please find a list of our most common Frequently Asked Questions. If you have any questions that can not be answered here, please contact us for more information on how we may be able to assist you.
What does it mean to be disabled?
Disabled means that due to an injury or illness, you no longer are able to perform your job. (For more specifics, consult with a disability attorney.)
What is the difference between Workers’ Compensation and Long-Term Disability?
Workers’ Compensation pays you benefits when you experience an on-the-job injury. While long-term disability benefits are paid out to you whether or not your injury or illness is job-related
What is the first thing I should do when and if I become disabled?
The first thing to do is to seek medical care. You and your doctor can determine whether your illness or injury results in permanent disability. The second thing to do is seek an attorney experienced in disability law.
What is the elimination period?
The elimination period is the period of time between when your disability begins and when you are eligible to receive benefits.
Should I also apply for Social Security Disability?
In general, the answer is yes. However, this is something you need to discuss with your disability attorney.
What is an overpayment?
An overpayment happens when your Social Security Disability benefit is set after you have been on long-term disability. The Social Security Administration then determines that you were entitled retroactively to benefits. Therefore, according to many or most long-term disability plans, the long-term disability carrier owes you less money. Because of the reduction and the retroactive payments from Social Security, you will owe money to the long-term disability carrier.
What is ERISA?
According to the Department of Labor, “the Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.” The full text of this explanation can be found at this ERISA website. A large majority of group disability insurance plans provided by employers fall under the jurisdiction of ERISA. ERISA was originally intended to insure that pension plans were managed responsibly and that employees would actually receive the benefits they were expecting. Unfortunately, the application of ERISA to disability insurance plans has not had that effect. Instead, ERISA has helped to protect the insurance carrier’s interest, and has reduced the legal protections available to plan participants.
Do I need a lawyer to appeal the insurance company’s decision?
No, but your chances of obtaining your disability benefits increase when you have an experienced attorney who knows the “rules of the road.” If you can retain an attorney early in the process, there will be more time for the attorney to shape the appeal in your favor, by focusing your appeal on the important issues. In addition to focusing your appeal on the issues that matter, the attorney can help you avoid the irrelevant issues which can be misused to deny benefits. There are many pitfalls throughout the administration of a disability claim. An attorney can help you avoid making mistakes in the initial application, Activities of Daily Living Questionnaire, at interviews, at IME’s or at home visits. Lastly, an attorney can also help make sure that your medical evidence supports all of your claims for disability benefits, whether they are to the Social Security Administration, Merit Systems Protection Board, Office of Personnel Management, or NYCERS.
What do I need to appeal my case?
It depends on the particular form of disability benefits you are appealing. While normally, all you need is a written letter, there are times when you must use their form. It is important to contact your individual agency or carrier to get the proper forms and or procedure.
What documents should I bring to my initial meeting with an attorney from DeHaanBusse LLP?
When you contact us, we will tailor our review to your case. That being said, you should always have a copy of your Claim File. If you do not know how to obtain this, contact our office and we will walk you through the process. You should also have a copy of your Summary Plan Description from your employer or the plan administrator that was in effect at the time that you stopped working due to the disability or your disability income insurance policy. Lastly, you should also bring with you copies of any current Medical Records, which will illustrate the nature of your medical disability.
Why is a letter from my doctor saying I am totally disabled, not enough to win my disability benefits?
A letter from your doctor will not in and of itself guarantee success for your claim for disability benefits. Your doctor’s opinion of your total disability is only one important piece of the puzzle. If that is the only document you send in as your appeal, you will probably not be successful. In order to win, you will need a combination of many different forms of proof. Depending on the facts of your case, you will most likely need the combination of medical and vocational evidence. A letter from your doctor is an important piece of the evidence necessary to establish your total disability, but not the only piece of evidence. In fact, there are many instances when the treating physician believes that his patient is totally disabled, fills out all of the forms required by the carrier, and the carrier stills denies the claim for disability benefits.
Will I automatically get my Long Term Disability benefits since my Social Security benefits were already approved?
No. Approval of disability benefits by the Social Security Administration (SSA), is not binding on an insurance carrier. In fact, insurance companies routinely argue that what the SSA determines is not binding on them. They state that because there are different rules for the SSA and the individual policy, they are not bound by the determination. That being said, a determination by the SSA is still an important piece of evidence.
What do I do if the insurance company wants me to be examined by their doctor?
Call your attorney immediately so that they can insure that you are treated fairly. These independent examiners are paid by the insurance company and usually give opinions favorable to the carriers. They sometimes give opinions outside their area of expertise and you should pay special attention to their credentials. You should also not attend the examination alone. At DeHaanBusse LLP, we have a licensed registered nurse on staff who routinely accompanies clients on these independent medical exams.
What are my costs for an appeal or litigation?
Each case is different and aside from disbursements, the retainer for your particular case is unique to your facts. The specifics of the retainer will be discussed with you after a free consultation.
Will my employer fire me while I am on disability?
The answer to this question lies within the your employer’s employment practices and/or applicable federal statutes. The Family Medical Leave Act only requires your employer to hold your job for 12 weeks of unpaid leave in any 12 month period. After that, employers routinely fire people on disability – unless the employer has its own internal policy providing for more leave. Usually, this is not considered discrimination if the employer is firing you because you are not at work, rather than solely because of your disability. The distinction is very subtle and any determination of discrimination needs to be reviewed carefully by the attorney.
Does the insurance company have to act in a fair manner during my appeal?
Under an ERISA case, the general rule is that they have to provide you a full and fair review. As for an Individual Policy, they are required to act in accordance with the terms of the policy, which usually contains a clause dealing with fair dealing. Does that mean that they routinely deliver on that promise? No, it does not. There are some insurance carriers who do the right thing, but many of the carriers are overly concerned with their bottom line, and not overly concerned with the person suffering from a disability. Usually, if the carrier can interpret something to its benefit, or in such a way that it can justify termination or denial of your benefits, it will. Some insurance companies have a history of evaluating disability claims in a biased manner, and you should ask your attorney for further information.
Does my disability have to be based on a physical injury or illness?
Generally no, but the answer depends on the type of benefit you are seeking. For example, many policies provide for a limited benefit based upon a mental disability. There are also many policies, usually individual policies, that do not limit benefits, based upon a mental disability. You should always consult your summary plan description or insurance policy to determine how much your benefit will be, and how long you will receive those benefits. Lastly, there are many carriers that misconstrue a physically based disability for one that is based on a mental condition. It is important to know the difference and to have someone on your side to make sure that these disabilities are evaluated and understood separately.
When can I sue for my disability benefits?
Depending on your type of disability benefit, you may have to exhaust your remedies with the carrier. If your policy is an individual policy, then you can bring your action directly to court without having to exhaust the administrative procedures afforded by the insurance carrier. Traditionally claims under employer sponsored disability plans are brought in federal district courts and individual polices can be brought in either state or federal court. If the carrier offers an appeal on an individual policy, it is usually a voluntary appeal, and the decision to take the appeal is one that should be made after speaking with your attorney.
What is the UNUM Reassessment?
Based upon the findings of the chief insurance regulators of Maine, Massachusetts and Tennessee, as well as the rest of the other 50 states, UMUM Provident Corporation agreed to change its claim handling processes and to reassess some claims going back as far as 1997. UNUM has agreed to reassess over 200,000 claims.
What did the insurance regulator’s find wrong with UNUM’s claim handling practices?
The multi-state market examination identified several of UNUM’s claims handling practices to be of concern including, but not limited to, the following areas: Excessive reliance on in-house medical staff to support the denial, termination or reduction of benefits; Unfair evaluation and interpretation of attending physician or independent medical examiner reports. Failure to evaluate the totality of the claimant’s medical condition; and, inappropriate burden placed upon claimants to justify eligibility for benefits.
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DB Disability Blog
