Florida Long Term Disability Insurance & Erisa Attorneys

Long-Term Disability & ERISA Benefit Claims

What is ERISA?  ERISA is the Employee Retirement Income Security Act, enacted by Congress in 1974. It was intended to bring all employee benefits into one federal system. Instead, it has become a major advantage for employers: ERISA is controlling all types of employer provided benefits such as health insurance, life insurance, disability insurance, pensions, etc. It can be confusing and frustrating. Let the Florida Long Term Disability Insurance & Erisa Attorneys at Lieberman & Zagoria, P.A. help you sort thing out.

Among the criticisms of ERISA are the following:

• You must exhaust all of your administrative remedies before proceeding to federal court;
• There are no jury trials;
• There are no punitive damages;
• ERISA limits your rights and remedies and puts restrictions on what evidence can be submitted and when.
• It allows the insurance carriers to use a discretionary clause to prefer its doctors instead of your treating doctors, even if there is a financial conflict of interest.

There are 2 exceptions or safe harbors for ERISA coverage. These are for government plans and church plans. These could be city, county, or state governmental units that opted out of social security and have their own retirement plan. In Michigan for example, all school employees are employees of the State of Michigan, so they would be exempt. The same should exist for employees of churches, temples, religious schools/colleges, and hospitals operated by religious orders.

Why Insurance Carriers Don’t Want Claimants to Have ERISA-Educated Lawyers

When insurers see that an insured is unrepresented they will try to expedite the claims process as quickly as they can in the hope they can complete the final administrative appeal before the insured catches  on and retains counsel. While a claimant can still appeal to the federal courts after the final administrative denial, the “record” has been closed, meaning it is now too late so submit additional medical evidence or legal argument. A deficient record, not protected by counsel, makes it much easier for the LTD carrier to win. Unrepresented clients frequently do not appeal at all, thinking the LTD carrier must be correct, or they appeal untimely. Some claimants retain counsel, which is better than no representative at all, but this lawyer does not see all of the issues, does not know how to best obtain medical proof as to disability or all of the nuances of disability law. The insurers would prefer you to get fed up, aggravated, frustrated by the appeals process, misplacing your file, not receiving your mail, so they can encourage you to abandon your appeal.

Never use representatives provided to you by your disability carrier for a social security claim. Most individuals who have pending claims for ERISA, disability insurance,  STD, etc. also have a concurrent social security claim. Frequently, the disability carrier will provide an ERISA claimant with a “free” social security representative. They do this because they have the negotiating power to obtain decreased fees. However, more often than not, this representative is not a lawyer and has comparatively little training. They owe the claimant no ethical duties. They generally work for the LTD carrier, not you (who pays their fees). What would they do if they found some medical evidence that was harmful to you ERISA claim?

I am proud to handle social security disability claims. I have been doing this for 41 years. It is not beneath my dignity. Many times the social security benefits I have obtained for my client allows them to survive longer financially, until I can win their ERISA claim. Generally, the same medical evidence can be used in both claims, tending to reduce costs. I can better coordinate both claims as to strategy. I know what areas to avoid, i.e. mental nervous claims when the LTD policy has a 24 month mental-nervous limitation.

What Do I Do as a Disability Lawyer?

1. I plan a schedule and strategy.
2. I carefully examine the insurance policy and other plan documents for specific issues and pitfalls.
3. I complete most of the forms for my client.
4. I discuss and negotiate claims with carrier personnel.
5. I help my clients obtain the most appropriate types of medical proof;
6. I write and file appeal memos and briefs.
7. I make sure we create a proper record for appeal to federal courts, if necessary.
8. I attend meetings with you with carrier personnel.
9. I help translate diagnoses of impairments into functional limitations for sitting, standing, walking, bending, lifting, etc.

Own Occupation vs. Any Occupation

Every insurance policy has some definition of the concept of “disability”. This definition does not always remain the same. The most common definition is an “own occupation for 24 months” followed by an “any occupation” thereafter. The first 2 year period allows many claims to be paid for at least the first 2 years, and then terminated. The any occupation has to be in the same profession as prior work or pay a certain percentage of pre-disability earnings. Other times, any occupation can be the greeter at Walmart or selling pencils on the street corner from a tin cup. The disability carriers also can define occupation in strange ways. A frequently seen occupation is a hospital nurse, described in the D.O.T. as medium work because of lifting patients and very skilled. The LTD carriers will classify all nurses as sedentary (there are supervisory and teaching nurses), not medium, for own occupation if it allows the claim to be denied. The more general concept of “any” occupation for SSA also has to be at least SGA/Substantial Gainful Activity, with gross monthly earnings in 2016 of $1,090.00.

There are many technicalities one must be careful of in LTD claims. These are nothing more than pretexts that the courts and Congress have allowed the insurance companies to use to deny more claims. These include:

• 24 Month mental nervous limitation;
• Pre-existing illness is not grounds for disability at all;
• Self-reported illnesses (i.e. CFS, fibromyalgia, migraines, etc.);
• Missed deadlines by even one day (no provisions for good cause for late filing);
• Video surveillance of claimants by private detectives;
• Denying short term disability claims just before the duration is up to try to prevent a continuing claim for long term disability;
• Avoid social media and the internet with a passion. Do not join a bowling league or have a fishing license. Prepare for the carriers to see every article you have written, every BLOG, etc. Do not post pictures of your vacation to Disney World while claiming disability.

There is one of these circumstances that works to the benefit of the claimant. This is contra proferentum. This is a legal doctrine that finds the mistakes and ambiguities in plans and policies that are resolved against the maker or the drafter, as the LTD carrier could have written it better or correct.

It Is Important That You…

• NEVER, NEVER, NEVER, file final administrative appeals by yourself or without any attorney. Unlike SSA or many other legal matters, there is no reapplication, no other claims, etc., the administrative record is absolutely CLOSED. There are no second chances, etc. The only “fair” level of appeal, if there is one is federal court. Why would you then prematurely close the record or otherwise neutralize a lawyer’s best chance of winning your claim by not giving him/her the opportunity to develop a record that might allow you to win.
• Do not miss appeal deadlines-depriving you of ultimately getting to federal court.
• Do not fail to obtain copies of policy and summary plan description. Without these plan documents you do not even know what the issues are. If properly requested, from employer-insurer (i.e.in writing, by certified mail) they have to be provided or they could be liable for significant fines, up to $125.00 per day.

The single biggest problem in LTD/STD/ERISA claim adjudication is the use of the discretionary clause. This is language in the policy or plan that allows the insurer the ability to defer to its own earlier determinations and the ability to give greater weight to its own doctors or experts, even those not properly qualified, compared to your own longtime treating physicians or to properly qualified experts you have seen. Several States, approximately 10 or 11, including Michigan, by various methods, have abolished the use of the discretionary clause.

Get Experience on Your Side, Call our Florida Long Term Disability Insurance & Erisa Attorneys

A thorough understanding of the litigation process of ERISA cases is critical if you are considering filing a claim, appealing a court decision or entering the administrative appeals process to dispute any issue involving your employee benefits. It can be overwhelming, trying to understand the paperwork and meeting deadlines.  Don’t go through it alone. Contact a skilled attorney to assist you. We offer free consultations.