LTD Claim FormYou employer-provided long term disability insurance is supposed to cover you when your mental or physical condition makes it impossible to work. But actually receiving benefits can often be challenging. Find out how to appeal if you have had your long term disability benefits denied or terminated.

This blog post will address the appeals process for employer-provided long term disability insurance policies under the Employee Retirement Income Security Act of 1974 (ERISA). It will explain an employee’s options when they have their long term disability benefits denied or terminated. It will also explain when it is time to hire an attorney to help.

When Will You Know Your Long Term Disability Benefits were Denied

Any long term disability matter starts with a claim for benefits. This is a written request sent to the plan administrator, or the employer’s human resources department. Employees facing long-term disabilities should consult their Summary Plan Description to see where the claim should be filed and what should be included.

In employer-provided policies, federal law gives insurers a deadline to respond to any claim. Initially, the plan must make a decision within 45 days of the filing of the claim. However, the plan can request up to two extensions and can request additional information from the employee, which may further delay the response. Plan administrators must give a written decision within 30 days of receiving the final information.

What to Look for in the Long Term Disability Benefits Denial

If your long term disability benefits are denied or terminated, the plan administrator must give you a written or electronic notice that provides:

  • Why your claim was denied (including any disagreements with medical professionals or vocational experts)
  • Which specific part of the plan the denial is based on
  • Notice that you are entitled to receive all documents related to your claim at no cost
  • Copies of the rules, policies, protocols, and other guidelines used in denying your claim
  • Descriptions of the appeals process and time limits going forward

A careful review of the long term disability benefits denial notice can be the difference between a successful appeal and further frustration. Where the reason for the denial was insufficient medical documentation, or a lack of objective measurements for the effect of the disability, an appeal may simply mean the employee needs to provide further information. When the decision is based on a disagreement with medical professionals, the policies and protocols may provide insight into what more needs to be done to win the appeal.

When to File the First, Mandatory Appeal

ERISA requires long term disability insurers to include an appeals process in their plans. Employees have the right to have their claim reviewed by someone new who was not involved in the original denial. That person will take a fresh look at the claim and supporting documents. He or she is not allowed to consider the initial decision or the reason for the denial.

The policy’s Summary Plan Description and the written denial should each explain the time limits for filing your first appeal. Under ERISA, the plan must allow at least 180 days to file an appeal (but it could be longer). A decision on appeal can be based on any information provided along with the appeal itself, even if it was not a part of the original claim. If an employee’s condition has deteriorated during the six months or if a new doctor has provided additional diagnoses or work restrictions, they may be the basis for approval of benefits on appeal.

Once again, the plan is required to respond within 45 days and can request an extension of up to 45 days. The plan cannot deny benefits for a new reason, or based on a new medical report, unless it gives the employee notice of the new information and a reasonable opportunity to respond. The employee is also entitled to copies of any new evidence used in reviewing the appeal.

Union Workers May Have Different Appeals Processes

Employees who are part of a single-employer or multi-employer union may have different time limits or review processes written into their collective bargaining contract. When their long term disability benefits are denied they may have to follow their collective bargaining grievance process or wait for a quarterly board of trustee meeting.

Should You Hire an Attorney for the Second, Voluntary Appeal?

Some insurance companies provide a second level of administrative appeals, called either a second appeal or a voluntary appeal. If a voluntary appeal is available, the denial notice on the first long term disability benefits appeal will include information regarding the secondary appeal process and the time limits. Under ERISA, the employee must be given a reasonable amount of time to file a second appeal (sometimes less than 180 days). However, the plan still only has the same 45 days to address both levels of appeal.

Many employees choose to file a first or second appeal on their own, waiting to hire an attorney until the matter is headed to court. However, hiring an attorney for the mandatory or voluntary appeal gives that attorney a chance to review the bases for denying the claim and to provide additional proof, improving the chances that a claim will be granted and strengthening the case if it does head to court.

When an employee files an ERISA lawsuit after having their long term benefits denied, the court is typically only allowed to look at evidence provided during the administrative stages of the process. When employees wait to hire attorneys, they lose access to the professional experience of what it takes to develop their strongest case.

However, there are also reasons why an attorney may recommend skipping the voluntary appeal and heading straight to court — such as when the employer or plan administrator has made a mistake in its reason for the denial that may result in a favorable result in court. By consulting with a long-term disability lawyer before filing the second appeal, an employee may be able to shorten the process and receive their long term disability benefits sooner.

Employees with serious impairments often have their long term disability benefits denied by insurance companies. But no doesn’t have to mean no. By strategically filing a second appeal or federal lawsuit, employees can get the benefits they need to support themselves, and their loved ones. At Bross & Frankel, our long-term disability attorneys are here to help. We will review your denial and your condition, and help you make your strongest case. Contact us for a complimentary consultation.

Your long-term disability insurance (LTD) policy likely defines disability based on whether are able to perform your “own occupation” or “any occupation.” You probably want to know — and need to know — what the difference is between “own occupation” and “any occupation” in long-term disability insurance policies and what each term means. Those provisions will determine whether you are disabled and entitled to benefits.
Our discussion below centers on provisions that typical in many long-term disability insurance policies. Your own entitlement to benefits will be based entirely on the provisions contained in your policy. If you need assistance in understanding the provisions in your own policy or have questions about your policy, you should discuss your policy and circumstances with an attorney experienced in long-term disability insurance issues.

“Own Occupation” Provisions in an LTD Policy

Long term Disability ApplicationLong-term disability insurance policies — especially those for high-income individuals and professionals like doctors, dentists, and lawyers — sometimes include coverage for a disability that results in the insured person being unable to perform the duties of his or her specific occupation. Those policies are referred to as “own occupation” policies, because they determine total disability based on whether the insured can perform his or her “own occupation.”
If your policy has “own occupation” provisions, you likely will be considered to be totally disabled (and therefore entitled to benefits) if you can no longer engage in the customary work of your regular position. You receive benefits regardless of whether you can perform work in a different occupation. “Own occupation” usually refers to the specific work you were performing at the time you become disabled, but the definition in your policy may be different and will determine your exact coverage.
Most policies that include these provisions limit them to a specific amount of time, usually the first two years (24 months) of the disability. If your policy includes “own occupation” provisions with a time limit, coverage will change for the purpose of determining total disability to whether you are able to perform “any occupation” after the initial time period expires. That change in coverage can result in a decision by the insurance company to terminate your benefits.
Examples of “own occupation” provisions follow.
Standard Insurance Company provisions, from a Minnesota case in the United States District Court:

“You are Disabled from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity one of the Material Duties of your Own Occupation.

Own Occupation means any employment, business, trade, profession, calling or vocation that involves Material Duties of the same general character as the occupation you are regularly performing for your Employer when Disability begins. In determining your Own Occupation, we are not limited to looking at the way you perform your job for your Employer, but we may also look at the way the occupation is generally performed in the national economy. If your Own Occupation involves the rendering of professional services and you are required to have a professional or occupational license in order to work, your Own Occupation is as broad as the scope of your license.

Material Duties means the essential tasks, functions and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation that cannot be reasonably modified or omitted. In no event will we consider working an average of more than 40 hours per week to be a Material Duty.”

Prudential Insurance Company provisions involved in New Jersey case in United States District Court:

[A]n individual is deemed disabled “when Prudential determines that: you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury.” … “Material and substantial duties” are then defined as duties that “are normally required for the performance of your regular occupation; and cannot be reasonably omitted or modified.” … “Regular occupation means the occupation you are routinely performing when your disability occurs. Prudential will look at your occupation as it is normally performed instead of how the work tasks are performed for a specific employer or at a specific location.”

“Any Occupation” Provisions in an LTD Policy

In contrast to “own occupation” policies, total disability and benefits under an “any occupation” policy are based on whether the insured can work in any occupation, even if it’s not his or her own prior occupation. If you have an “any occupation” policy, you will not be considered to be totally disabled and therefore will not be entitled to benefits if you can still perform any occupation, as defined in the policy. Many employer-sponsored plans are “any occupation” policies, rather than “own occupation” policies.
Each policy defines what qualifies as “any occupation.” Typically, “any occupation” means employment in a position for which you are reasonably suited, based on your education, skills, employment history, and other individual factors. Often, policies define “any occupation” as any employment in which you can earn a specific percentage of your pre-disability earnings, usually either 60% or 80%. If you are a professional or work in a high-income field, being able to earn that percentage of your prior income may not be significantly different from being able to perform your prior occupation.
If your policy includes “any occupation” provisions, the meaning of the term will be specifically defined in the policy. In the context of a claim, how the term is defined in your policy will determine whether you are totally disabled and entitled to benefits.
If questions arise about whether you can perform “any occupation” for purposes of receiving benefits under your long-term disability insurance policy, the insurance company may have a vocational expert conduct an analysis to determine what occupations you can perform. If the vocational expert determines that you can perform another occupation that qualifies as “any occupation” under the provisions of your policy, the insurance company likely will deny benefits.
An example of “any occupation” provisions from The Hartford Insurance Company in a California case in United States District Court:

“After that, you must be prevented so from performing one or more of your Essential Duties of Any Occupation.” … “[A]ny occupation” is then defined as “an occupation for which you are qualified by education, training, or experience, and that has an earnings potential greater than an amount equal to the lesser of the product of your Indexed Pre-disability Earnings and the Benefit Percentage and the Maximum Monthly Benefit shown in the Schedule of Insurance.” … “Essential duty” is defined as “substantial, not incidental; is fundamental or inherent to the occupation; and cannot be reasonably omitted or changed.”

Issues that Can Arise under Occupation Provisions of a Disability Insurance Policy

If you have a policy with “own occupation” provisions that change to “any occupation” provisions after a specific period of time, there is a risk that benefits could be terminated when the time limitation expires. If your policy has only “any occupation” provisions, you may face denial of benefits when you initially submit your claim if you can still perform a different job.
Even during the “own occupation” period, insurers may disregard specific features of your job and instead review your occupation only as it is “generally performed” in the economy. This can be especially problematic for workers with multi-faceted jobs that may require physical or skilled work beyond what is commonly understood as “essential” to the performance of the occupation. If the insurer finds that a particular work task is not an “essential” function, or one that can be easily modified, you may be denied even if you are unable to perform your job as you had previously.
If the insurance company denies your claim or terminates your benefits, they likely will base the decision on their interpretation of the occupation provisions of your policy. Like all insurance companies, their primary interest is in making the most restrictive interpretation possible, so they can deny your claim and save money.
With the help of an attorney experienced in long-term disability insurance claims, you may be able to successfully appeal a denial of benefits or even prepare for the possibility of benefit termination due to a change from “own occupation” to “any occupation” criteria under your policy. To accomplish a favorable result, your attorney will argue for a different interpretation and provide evidence to support that interpretation.
Attempting to challenge a benefits denial on your own is not recommended. The insurance company will have substantial resources to apply to supporting their decision. You need to counter with equally strong arguments and evidence. That is exactly what your attorney will do on your behalf.
For example, if your insurance company uses a vocational expert in making a determination that you can perform “any occupation,” your attorney can challenge the expert and his or her findings or even provide an analysis from a different vocational expert to support your claim. Compiling medical documentation and evidence can strengthen your case as well. The strategy in each case will be different, depending on your circumstances and your policy.

Talk with an Experienced Long-Term Disability Claim Attorney

Long-term disability claims are frequently denied or terminated by insurance companies. If you are applying for benefits, anticipating possible termination of benefits under a change from “own occupation” to “any occupation” provisions, or facing a denial of benefits, our skilled and trusted disability attorneys at Bross & Frankel are here to help. If your application for benefits was denied, it is essential to get assistance as soon as possible. An appeal from denial of benefits must be filed within a limited period of time.
Contact us for a complimentary consultation.

If you suffer from chronic pain, you know well that the pain, itself, is not your only problem. The pain may prevent you from exercising, from taking care of your home and family, and — importantly — from doing your job. But these limitations from pain are only part of the story. The other problem chronic pain sufferers often face is that doctors, employers and others may not believe how bad the pain is. There is, after all, no simple way to measure your experience of pain. This can reasonably make you worry that you will not be able to get time off work or disability benefits for chronic pain.

Man with chronic back pain at doctor's officeThe good news is that medical diagnosis and tests are getting better at confirming self-reported pain caused by many things from fibromyalgia to Chronic Fatigue Syndrome to other injuries and illnesses. The bad news is that insurance companies still often deny employee disability claims based on chronic pain, since it is harder to measure or prove than more obvious illnesses and injuries.

If you are an employee who is unable to work because of pain, you may apply for long-term disability benefits (LTD benefits) through your employer’s LTD policy. Knowing how LTD policies and insurers address chronic pain claims will increase your chances of having your claim approved. Given how hard it can be to successfully show you can’t work because of chronic pain, you should also consider getting the help of an experienced long-term disability benefits attorney.

Chronic Pain as a Disability

What is chronic pain? It is often defined as pain that continues longer than normally expected after a major illness or injury — roughly more than 3-6 months. Chronic pain can be local; showing up in specific body parts such as the head, back, or joints. Alternatively, chronic pain suffers may experience pain in the muscles, or nerve pain all over the body. It may be related to an injury or illness, or there may be no clear explanation as to the cause. In these cases, sufferers and their doctors may share frustration and anxiety as they work to find answers that can be elusive.

You can be diagnosed with a pain disorder, or, you may have a disorder that causes chronic pain. Some common examples of chronic pain conditions include, but are certainly not limited to:

  • Amyotrophic Lateral Sclerosis (ALS)
  • Benign chronic pain syndrome
  • Cancer pain
  • Cervical/Neck Pain
  • Chronic Fatigue Syndrome (CFS)
  • Chronic Regional Pain Syndrome (CRPS)
  • Cluster, Tension, or Migraine Headaches
  • Degenerative Disc Disease (DDD)
  • Fibromyalgia
  • Gout
  • Irritable Bowel Syndrome (IBS)
  • Joint Pain
  • Lyme Disease
  • Neuropathy pain (nerve damage)
  • Osteoarthritis
  • Psoriatic Arthritis
  • Reflect Sympathetic Dystrophy (RSD)
  • Rheumatoid Arthritis (RA)
  • Sciatica
  • Shingles

If chronic pain is keeping you from doing your job, you may qualify for long-term disability (LTD) benefits. But applying for benefits is not quite as easy as saying, “my pain is so severe that I can’t work.” Here are some of the reasons it is difficult to get LTD benefits for chronic pain — and things you can do to increase your chances of being approved for benefits.

LTD Limitations on “Self-Reported” Pain Symptoms

Tests such as X-rays, MRIs, and CT scans can show that you have an injury, but they do not show the actual pain that you feel. In addition, the experience of pain from a similar condition or injury can vary from one person to another. So proving whether you are in pain — and how bad that pain is — often has to be based on “subjective” or “self-reported” symptoms. In other words, your doctor simply has to believe you when you explain where it hurts and how badly it hurts. It is always important to report your pain to your doctor.

For obvious reasons, disability insurance companies are often suspicious of claims for self-reported conditions. They reason: how can they really know that your pain is so bad it stops you from doing your job? What if you’re lying about your pain just to get benefits? So, when you file a disability claim for a self-reported condition like chronic pain, it is very likely that your initial claim will be denied. Insurance companies are more likely to employ “fraud” tactics in chronic pain cases, like hiring private investigators to follow you around for a few days to see if you’re really as limited as you claim.

Even if your claim is approved, benefits for disabilities based primarily on self-reported symptoms may be limited to 24 months, even if the symptoms are a result of a proven illness or injury. Even if your claim is approved, some policies have specific limits on how long you can receive benefits for disabilities based primarily on self-reported symptoms. It is important to read your own policy — or get legal help in reviewing your policy’s terms — to see what limits apply to your situation.

LTD plans usually have a non-exhaustive list of what the plan considers self-reported symptoms. Some common examples include headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy. If you file a claim for disability benefits on these kinds of symptoms, it is very important to have enough medical evidence to show that your symptoms are real.

Making Your LTD Case for Chronic Pain

When you claim LTD benefits for chronic pain, LTD claims examiners look at your physical and mental limitations to determine whether your disability limits you so severely that you are unable to work full-time. Unfortunately, the claims examiners often don’t trust that an employee is telling the truth about self-reported pain conditions. Another problem is that doctors who diagnose or treat disability applicants commonly do a bad job of documenting a patient’s levels of pain in their treatment notes or stating what the effects might be on the patient’s ability to work or do normal daily activities (this is especially true for doctors who utilize electronic medical records that often report no symptoms unless your visit is explicitly scheduled to discuss that problem). So how do you go about proving your pain?

Credibility is King

The believability of the patient generally becomes the driving force behind the approval or denial of a disability claim based on chronic pain. The disability insurance company, of course, considers the doctors’ opinions, clinical notes and records, physical examinations, diagnostic imaging, and the type of treatment you have received. But often a claims examiner, and the reviewing nurses who help them, put a lot of thought into whether the patient is credible — that is, if he or she seems to be telling the truth — when the patient describes how bad the pain is. The consistency of the complaints and reasonable connection to the underlying disease or injury is critical to this analysis.

Continuous Medical Treatment

Receiving continuous medical treatment is very important to establish your credibility. Your disability insurance carrier will doubt that you have been in severe pain if you have not received treatment for your pain on an ongoing and continuous basis. Treatment may include medical as well as non-traditional methods of pain relief such as massage, physical therapy, acupuncture, exercise, nutrition, herbal supplements, yoga, and meditation. It is not necessary to seek narcotic pain medications to be taken seriously. It is, however, absolutely critical not to give up on getting medical help, even if it seems like there’s “nothing else to do.” Be sure to document everything you do to relieve your pain in your application for disability benefits.

Keep a Pain Journal

Keeping a pain journal can help you record important facts about your chronic pain over time; after all, only you can know when and how much it hurts. When keeping a pain journal, the following details can be important depending on the kind of chronic pain:

  • Date and time the pain occurs
  • Severity of pain (scale of 1-10)
  • Type of pain: sharp, dull, achy
  • Location of pain
  • Duration of pain
  • Possible causes of pain: physical activity, particular movements, over exertion
  • Additional or related symptoms
  • Pain management: limit activities, medication, massage, psychotherapy, etc.
  • Effects of current treatment
  • Changes in treatment
  • Changes in underlying medical condition associated with chronic pain
  • Lifestyle factors that can affect pain: diet, exercise, quality of sleep
  • Emotional and psychological effects of pain, such as depression and changes in mood

It is important to pay close attention to how your chronic pain limits your physical and mental activities. Can you stand or walk for an hour or less, but only by clenching your fists against the pain? Do you have to lie down or put your feet up periodically? Do you find it difficult to learn or remember new information because you are distracted by pain? Or maybe it is hard to get along with supervisors and coworkers because your pain makes you irritable and impatient? When documenting your pain, you need to be realistic about how your pain might limit you in a full-time job. If you can only stand for an hour at a time by suffering a tremendous amount of pain, chances are you probably won’t be able to stand for an hour every day to do a job. Share your pain journal with your doctor and make sure that it is part of your medical chart that gets sent to the LTD insurer along with your long-term disability claim.

Getting Help with Your LTD Claim

Because it can be so difficult to prove total disability based on chronic pain, we recommend working with an experienced attorney. The long-term disability attorneys at Bross & Frankel are highly knowledgeable about chronic pain claims and familiar with the tactics disability insurance companies like use to deny benefits. For a free consultation with a lawyer about your disability claim, contact Bross & Frankel today.

To learn more about chronic pain, check out the following sites:

American Chronic Pain Association

U.S. Pain Foundation

American Pain Society

Depression is one of the leading causes of disability in the United States. More than 16 million adults in the U.S. have suffered from at least one major depressive episode in the last year. Clinical depression is a mood disorder characterized by persistent feelings of sadness, hopelessness, and isolation so severe that it interferes with one’s daily life. Depression can also have accompanying physical symptoms such as fatigue, loss of appetite, and chronic pain. Depending on the severity, depression can be debilitating both mentally and physically, making it impossible to maintain a regular routine, such as going to work everyday.

Depression as a Disability

Man Unable to Work Because of Depression

Although depression affects such a large segment of the American population, long-term disability (LTD) insurers are often reluctant to approve any claims based on mental illnesses. This is due to the fact that many mental illnesses can be exceedingly difficult to prove i.e. there is no objective test for depression. Instead, depression and anxiety are diagnosed clinically by psychologists, psychiatrists, and therapists based on an interview. These mental health professionals rely heavily on what their patients tell them in a clinical setting. Because of this, individuals suffering from depression often look and act normally to others. However, their ability to perform in a work environment with any reasonable consistency is severely limited.

Someone suffering from depression may experience some of the following symptoms:

  • Trouble concentrating, remembering details, and making decisions
  • Fatigue
  • Feelings of guilty, worklessness, and helplessness
  • Pessimism
  • Insomnia, early-morning wakefulness, or excessive sleeping
  • Irritability
  • Restlessness
  • Loss of interest in things once pleasurable
  • Overeating or loss of appetite
  • Digestive problems
  • Persistent sad, anxious, or empty feelings
  • Suicidal thoughts or attempts

While these symptoms can make even the simplest of tasks overwhelming, they can make maintaining the routine and social interactions required to hold a job impossible.

LTD Limits on Mental Health Conditions

Because of the growing prevalence and awareness of mental health issues, LTD insurers have included language in their policies specifying how these types of claims will be addressed. Today’s disability policies almost universally contain lifetime limitations, capping payments on disability claims based on mental health conditions to 24 months. This limitation is commonly referred to as a Mental Illness Limitation. A Mental Illness Limitation provision appears in almost all employer-provided group plans (ERISA-governed LTD plans) as well as many individual LTD policies. However, unlike most group plans, an individual policyholder may purchase a policy rider that will remove this limitation in exchange for a higher monthly premium. It is important to read and understand your policy and its limitations.

The primary reason insurance companies will provide for a two-year limitation is because mental health conditions are considered more treatable than physical impairments. Many physical conditions, whether cardiac, spinal or neurological, are often permanent conditions, and therefore require indefinite LTD benefits. Conversely, mental health conditions such as depression or anxiety can hopefully be managed with medication and counseling. From the perspective of the insurance company, these types of conditions are temporary and thus only require temporary benefits. However, mental illness is often a lifetime battle and so, it is critical to know what your policy says and how it may (or may not) protect you.

Documentation is Key to a Successful Claim

Mental health conditions are unique in that many sufferers do not always seek medical care, only see a doctor sporadically when symptoms get worse, or discontinue treatment or medication when they feel better. However, it is important to keep in mind that LTD insurers rely heavily on medical records and your treating doctor’s opinion to determine whether you are eligible to receive disability benefits. Therefore, it is imperative that you receive regular treatment from a mental health professional, preferably a psychologist or psychiatrist, if you are to have any chance of prevailing on a disability claim based on depression. Remember, if your mental health symptoms are severe enough to keep you from working, the LTD carrier will expect you to be pursuing treatment consistent with a disabling impairment.

Always verify that your LTD insurer has received any and all medical documents that address your mental health condition. These documents will include records from any general practitioner, internist, psychologist/psychiatrist, psychiatric facility, and/or hospital where you have received treatment.

WARNING: Do not rely solely on your LTD insurance company to request and collect all the information needed to make an informed decision on your claim. It is your duty to provide proof of your disability. The insurance carrier’s requests can be inadequate, abbreviated, or even strategically designed to collect information unfavorable to your case. To ensure that the insurance company receives a thorough understanding of your condition and its subsequent limitations, talk to your doctor about making specific findings regarding your ability or inability to:

  • Be on time
  • Sustain a regular work schedule
  • Understand and remember simple or complex instructions
  • Focus-on and complete tasks
  • Maintain concentration
  • Handle work-related stress
  • Respond appropriately to social interactions with co-workers, supervisors, and the public

While insurance companies rely heavily on medical records to make disability determinations, you may also supplement your claim with information from other parties. Collect and submit statements from your family, friends, co-workers, supervisors, or anyone else that has witnessed how your depression has created difficulties for you at work or in everyday life. Any information that you can provide to bolster your claim will only help.

Long-Term Disability vs. Social Security Disability

You can apply for benefits from both LTD insurance and Social Security disability (SSDI) if you are disabled due to a mental health condition. But LTD and SSDI differ in important ways, including how you quality for benefits and how long those benefits may last.

As previously mentioned, LTD policies often limit the length of a disability claim to 24 months when the disability is based on a mental health condition. The insurer may still apply this time limit even if you also have a physical disability. These policies may include language indicating that they can apply this limitation if your overall disability is “contributed to” by your mental health. Although many policies exempt certain mental health conditions from this limitation (ex: Alzheimer’s, dementia, organic brain disease, bipolar disorder), the two-year limitation almost always applies to claims based on depression.

SSDI benefits for mental health conditions, on the other hand, are not automatically limited to a specific length of time. Once approved, your SSDI benefits won’t stop after two years. But they may be subject to Continuing Disability Reviews. Importantly, if you do not have any significant physical disabilities that affect your work, it can be hard to prove disability for SSDI benefits based only on mental health issues unless your condition is included in the Social Security Administration list of mental disorders. Otherwise, you will have to prove that you are unable to perform even very simple, routine work, on a regular basis.

Even if a disability claim based on mental illness is supported by significant medical documentation, a treating psychiatrist’s detailed opinion, and a statement from everyone you know, a LTD insurer is still likely to deny an initial disability claim and force you argue your case on appeal. In these difficult cases, it is critical to hire an experienced disability attorney who can guide you through the appeals process and, if necessary, file a lawsuit against your insurer. Contact the expert disability attorneys at Bross & Frankel for your complimentary consultation today.

Checklist to Apply for Long Term-Disability BenefitsIf you are disabled from working, you may well be depending on receiving long-term disability benefits (LTD benefits) through a policy provided by your employer. Knowing the right steps and timeframe in which to apply for LTD benefits can make all the difference in being approved for benefits when you need them most.

Depending on the policy, long-term disability insurance pays a percentage of your salary, typically 50 to 60 percent. The benefits last until you go back to work or for the maximum number of the years stated in the policy (either limited by the policy or near your retirement age).

It is very important to understand that LTD benefits usually require a separate application from short-term disability benefits. If your policy provides for short-term benefits, these will usually last for only 1-6 months — exactly how long they are available depends on the particular policy. If you continue to be disabled and unable to work after your short-term benefits expire, you usually need to apply separately for long-term disability benefits.

Applying for LTD Benefits in 7 Simple Steps

1. Examine and Understand Your LTD Policy

If you become disabled and are unable to work for a period of time or indefinitely, it is important to carefully review your disability insurance policy options. If you have a private LTD policy, your policy documents will explain the process for applying for benefits.

Your policy will generally define what it considers a “disability,” as well as what does not count as a disability for purposes of receiving benefits. For example, many policies do not cover inability to work due to substance abuse or pre-existing conditions. Further, benefits may be time-limited if your disability relates to a mental health condition — like depression — or to “subjective” conditions that are hard to measure or document with conclusive medical tests, such as fibromyalgia, chronic fatigue syndrome or migraine headaches.

2. Ask Your Employer for an Application

Your employer’s Human Resources department can be an invaluable resource throughout the application process. Someone in your HR department should be able to provide you with an LTD application and important instructions to complete it.

You may also be able to find the forms on the insurance company or claim administrator’s website. The following are examples of long term disability claim forms taken directly from insurance companies’ websites:

3. Submit the Employee Statement

You will be responsible for completing a section of the LTD application often referred to as the Employee’s Statement. It will generally require you to provide information such as:

  • Your address and phone number
  • The name of your employer
  • Your occupation
  • Your birthdate
  • Your Social Security number
  • Your work history
  • Your educational background
  • The date your were injured or your illness started
  • The last day you worked
  • A description of your disability
  • The names and contact information for your doctors/medical providers
  • Any medications you take
  • Any other income you may be eligible to apply for

It is important to answer every question completely. However, the form may limit the space available to respond, so use an additional page if necessary to give full and complete answers.

4. Obtain Your Employer’s Statement

The LTD application will also require your employer to provide certain information. Such information could include your hire date, job description, salary, the physical and psychological requirements of your job, the date insurance coverage became effective, last day worked, and the date you returned to work (if applicable).

5. Collect Medical Records and a Statement From Your Doctor

It is important to see a doctor prior to applying for benefits since the insurance company will require medical proof of your disability. You may have to submit a signed authorization that allows the insurance company or administrator to request your medical records. Your signature will let the insurance company get the information about you that they need to determine your eligibility for benefits.

Additionally, as part of your LTD application, your doctor will be asked to complete a form or write a statement regarding his or her opinion of your condition. This may include information about dates of treatment, symptoms, findings, diagnoses, determination of whether your injury or illness is work related, types of treatment, opinions about your current limitations and when you may return to work, and any other information that the physician deems pertinent. If your doctor is not supportive of your claim, it may be very difficult for you to prove your disability and qualify for benefits. It is a good idea to speak with your doctor prior to starting your application so you can be sure he or she supports you.

To show that your disability is ongoing, you should continue to receive treatment from your doctor while your LTD claim is pending, even after you are approved for benefits. Failure to continue treatment could be grounds for the insurance company to terminate your benefits.

6. Apply for Additional Benefits

If your LTD claim has been granted, most policies will require you to file for Social Security disability benefits as well. Any Social Security benefits you receive will offset the amount the LTD insurance company is required to pay. Thus, your LTD insurance company has a significant interest in seeing you approved for Social Security benefits. Because of this interest, the insurer may refer you to a national company to assist you with your Social Security application. It is important to remember that these companies are focused primarily on saving the insurance company money. They may not be attorneys, and may not put your interests first. Bross & Frankel can assist you with your Social Security disability application. Call (856)795-8880 today to learn more.

7. Consider Contacting an Experienced Long-Term Disability Attorney

LTD claims can be complicated and are often denied for all sorts of reasons. For this reason, many disabled workers choose to work with an attorney right away to get help with the LTD application process. An experienced LTD benefits attorney can help you increase the chances that your LTD benefits will be approved by ensuring that you do everything right with your application, including submitting the most complete evidence of your disability.

If your application for LTD benefits has been denied and you want to appeal the denial, it is important you act quickly and follow each required step for an appeal — which generally includes contesting the denial in writing to the insurance company and, if you need to sue in court, meeting strict filing deadlines. An attorney is especially helpful during the appeal process.

If the disability application process has you at your wits’ end or your claim LTD benefits has been denied, contact the experienced and skillful disability attorneys at Bross & Frankel for a free consultation.

What would you do if an illness or injury left you disabled and unable to work for days, months, or ever again? Every year, thousands of people become disabled before they reach the age of retirement. Disability insurance offers benefits, usually based on a percentage of your salary, during the time you are unable to work. Many employees are aware that they receive health and retirement benefits through their employer, but fewer know if they have disability coverage, or what type of disability coverage they have.

When you need to draw on your disability coverage, it can make a difference if your policy is governed by the federal Employee Retirement Income Security Act, better known as “ERISA.” This is because ERISA, unlike an insurance policy you might purchase yourself from an insurance agent, provides legal protections to employees, as further discussed in this article. Most group disability plans provided by your employer are governed by ERISA. But private policies you purchased on your own are not.

ERISA Law NotebookWhat Exactly is ERISA?

The Employee Retirement Income Security Act of 1974 (ERISA) was enacted to set minimum standards for employee group benefits including health, life, and disability benefits. ERISA protects benefit plans from mishandling and abuse, and ensures that employers are acting in the best interest of their employees. ERISA regulates how disability plans are managed by the employer including how disability claims are to be processed, deadlines for filing a claim, and an employee’s rights if their disability claims are denied.

ERISA also requires accountability and transparency, to guarantee that employees have access to information about their benefit plans. Any employee covered by their employer’s disability benefit plan should receive a written summary of their plan detailing key features: how the disability plan works, what benefits are offered, and any out-of-pocket costs to be incurred by the employee for coverage.

When Does ERISA Apply?

An individual may choose to purchase disability insurance on their own or it can be provided by an employer. Some states require employers to provide disability benefits for their employees, including New York, New Jersey, California, Hawaii, and Rhode Island. Employers operating in these states must provide disability insurance regardless of where the employer’s corporate offices are located. Employers who do not provide disability coverage in these states may be subjected to fines and penalties. Who provides the insurance may determine whether the disabled individual is covered by ERISA.

The protective laws of ERISA only apply to private-sector companies that offer employer-sponsored benefits. It is irrelevant whether the private company is organized as a partnership, corporation, LLC, or a non-profit. Although ERISA provides protection to people who work for most types of employers, ERISA does not ordinarily apply to:

  • Privately purchased, individual insurance policies or benefits
  • Benefit plans offered through state, local, or federal government employers
  • Benefit plans offered through church employers
  • Benefit plans that are maintained only for purposes of complying with workers’ compensation, disability, or unemployment laws
  • Unfunded excess benefit plans
  • Plans that are maintained outside of the United States and are intended primarily to benefit non-resident aliens

If you don’t know whether your disability coverage is governed by ERISA, you can start by asking the human resources department at your place of employment. However, if your disability claim has already been denied or terminated, it may be time to speak to a disability attorney to help you advocate for your rights under your policy and ERISA.

Why is ERISA Important?

When an injured individual files a disability claim, their insurance company or employer may attempt to deny the employee’s claim. The claim may be denied because the employer alleges that the individual is not disabled, they are not covered by the policy, or that the employee failed to follow the proper guidelines when applying for benefits. It is important to understand whether ERISA governs the disability insurance claim because ERISA provides the right to appeal a claim denial and file a lawsuit to compel coverage.

How Does ERISA Affect My Disability Claim?

When an employee is covered by an ERISA-governed plan, the federal law provides a number of protections to help the employee obtain disability benefits. If an employee’s disability benefits are denied, ERISA demands the claimant receive copies of any documents, records, or information relevant to their claim for benefits, free of charge on request. Following an adverse decision, ERISA also requires that the claimant be allowed a full and fair review through an appeals process.

While ERISA provides certain protections for employees, ERISA has been interpreted in a way that also significantly benefits insurance companies. Perhaps most importantly, if the denial of your claim is upheld on appeal, in most cases, you cannot add additional evidence to prove your disability. In addition, if you have to go to court, a judge may be required to review the denial under an “arbitrary and capricious” standard of review. That means, even if the judge would have found you disabled, he or she can only overturn the insurance company’s decision if it is without a rational basis. Simply put, proving the insurance company’s denial was wrong may not be enough.

There are numerous ways in which ERISA effects disability claims, but the bottom line remains this: the primary purpose of ERISA is to safeguard employees who are counting on benefits that their employer promised them. ERISA is a broad and complex federal statute, and the protections that it affords claimants stated above are by no means exhaustive, and as noted above, ERISA may also negatively impact your rights, making it vitally important that you obtain all the evidence you could possibly need to prove your claim before the insurance company makes a “final” decision. For that reason, it is imperative to consult with an experienced ERISA attorney to explain your rights and fight for the benefits that you deserve.

Contact a Disability Benefits Attorney

Bross & Frankel, P.A. is dedicated to representing employees and individuals who have had their disability benefit applications wrongly denied or terminated. We encourage you to contact our office for a free, no-obligation consultation to discuss your rights and the next steps in your case. You have a limited amount of time to appeal the denial of your application, so it is advisable to act quickly. A claim review can bring you great peace of mind — at no cost to you.