applying through your employer’s long term disability benefits when your ms progresses lisa s....

Applying Through your Applying Through your Employer’s Long Term Employer’s Long Term

Disability Benefits When Your Disability Benefits When Your MS ProgressesMS Progresses

Lisa S. Kantor, Esq.Lisa S. Kantor, Esq.Kantor & KantorKantor & KantorAttorneys at LawAttorneys at Law(877) 783-8686(877) 783-8686

[email protected]@KantorLaw.net

Applying Through your Applying Through your Employer’s Long Term Employer’s Long Term

Disability Benefits When Your Disability Benefits When Your MS ProgressesMS Progresses



Multiple SclerosisMultiple Sclerosis

Taking Care of YourselfTaking Care of Yourself

Treating physicianTreating physician

Specialists and special testsSpecialists and special tests

Help at homeHelp at home

EmployerEmployer

Insurance CompanyInsurance Company

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Treating physicianTreating physician

Is your doctor qualified?Is your doctor qualified? Telling your doctor the whole truthTelling your doctor the whole truth Remember medication reactionsRemember medication reactions Don’t miss appointments (without Don’t miss appointments (without

calling)calling) Follow her adviceFollow her advice Don’t belabor disability issues before Don’t belabor disability issues before

you are ready to make a claimyou are ready to make a claim

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Specialists and special testsSpecialists and special tests

Go to recommended specialistsGo to recommended specialists

Take all recommended testsTake all recommended tests

Follow their adviceFollow their advice

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Short and Long Term DisabilityShort and Long Term Disability Short Term DisabilityShort Term Disability provides benefits to a provides benefits to a

person for a short period of time. The duration is person for a short period of time. The duration is usually 6 months, although this can vary usually 6 months, although this can vary somewhat from policy to policy. These benefits somewhat from policy to policy. These benefits are provided weekly and pay a varying are provided weekly and pay a varying percentage of a person’s salary, again percentage of a person’s salary, again depending on the policy.depending on the policy.

Long Term DisabilityLong Term Disability provides benefits to a provides benefits to a person for a much longer period of time. person for a much longer period of time. Typically until the person turns age 65. These Typically until the person turns age 65. These benefits are provided monthly and typically pay benefits are provided monthly and typically pay 60%, 66 and 2/3% or 50% of person’s salary. 60%, 66 and 2/3% or 50% of person’s salary.

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Disability InsuranceDisability Insurance

Two different types:Two different types:

1.1. Benefits you have through your Employer Benefits you have through your Employer (even if you paid some or all of the premium) (even if you paid some or all of the premium) – covered by the Employee Retirement – covered by the Employee Retirement Income Security Act (ERISA) [Note: Does not Income Security Act (ERISA) [Note: Does not apply to government or “church” employees];apply to government or “church” employees];

2.2. A disability policy you purchased on your A disability policy you purchased on your own, through an insurance agentown, through an insurance agent..

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Employer Benefits – ERISAEmployer Benefits – ERISA ERISA is a federal law that governs your rightsERISA is a federal law that governs your rights If you are denied, you must appeal if you want to If you are denied, you must appeal if you want to

file a lawsuit file a lawsuit Insurers may be given great leewayInsurers may be given great leeway No jury trialsNo jury trials Federal judges make decisions if you have to file Federal judges make decisions if you have to file

suit to get your benefitssuit to get your benefits Even if you win, you may have to pay at least Even if you win, you may have to pay at least

some of your own attorney fees.some of your own attorney fees. Offsets are taken for certain worker’s Offsets are taken for certain worker’s

compensation benefits, social security and other compensation benefits, social security and other disability benefits disability benefits

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Individual InsuranceIndividual Insurance(includes non-employer groups)(includes non-employer groups)

Typically no appeals required before Typically no appeals required before you can file a lawsuityou can file a lawsuit

Juries (not lifetime appointee judges) Juries (not lifetime appointee judges) make the decision on your casemake the decision on your case

If you win, your insurance company If you win, your insurance company will likely pay at least a portion of will likely pay at least a portion of your attorney feesyour attorney fees

Usually, no offsets are taken for social Usually, no offsets are taken for social security or other disability benefitssecurity or other disability benefits

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Important Differences Between Important Differences Between ERISA and Individual CoverageERISA and Individual Coverage

ERISA PlansERISA Plans::Benefit based on %Benefit based on %

No individual No individual underwritingunderwriting

Cheaper – and your Cheaper – and your employer may payemployer may pay

Offsets takenOffsets taken

Remedies restrictedRemedies restricted

Individual CoverageIndividual Coverage::Specific $ per monthSpecific $ per month

Individually medically Individually medically underwrittenunderwritten

More expensive and you More expensive and you pay all the premiumpay all the premium

Offsets not takenOffsets not taken

Bad faith remedies Bad faith remedies

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OFFSETSOFFSETS

ERISA disability insurance really ERISA disability insurance really provides only supplemental coverageprovides only supplemental coverage

Short term disability is supplemental Short term disability is supplemental to state disability and worker’s to state disability and worker’s compensation temporary total compensation temporary total disability (TTD) paymentsdisability (TTD) payments

Long term disability is supplemental Long term disability is supplemental to social security disability, worker’s to social security disability, worker’s compensation TTD payments, and compensation TTD payments, and other income replacement paymentsother income replacement payments

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Submitting a ClaimSubmitting a Claim

What coverage do I have?What coverage do I have?

What evidence do I have?What evidence do I have?

How do I communicate with the How do I communicate with the insurance company?insurance company?


What Coverage Do You Have?What Coverage Do You Have?

Read Your Read Your Plan or PolicyPlan or Policy

Without it, you don’t know the rules.Without it, you don’t know the rules. If you don’t have it, ask for it from If you don’t have it, ask for it from

your employer or insurance company your employer or insurance company – IN WRITING – CERTIFIED MAIL, – IN WRITING – CERTIFIED MAIL, RETURN RECEIPT REQUESTED!RETURN RECEIPT REQUESTED!


How LTD Insurers How LTD Insurers Define Disability:Define Disability:

““Own occupation” - Typically, you will be Own occupation” - Typically, you will be required to prove that you are not capable required to prove that you are not capable of performing the material duties of your of performing the material duties of your occupation due to your impairments.occupation due to your impairments.

““Any occupation” - Usually, after a period of Any occupation” - Usually, after a period of time (24 months is common) you will have time (24 months is common) you will have to show there are no occupations you can to show there are no occupations you can do based upon your education, training do based upon your education, training and work experience.and work experience.


CALIFORNIA LAW REGARDING CALIFORNIA LAW REGARDING “ANY OCCUPATION”“ANY OCCUPATION”

““When coverage provisions in general When coverage provisions in general disability policies require total inability to disability policies require total inability to perform ‘any occupation,’ the courts have perform ‘any occupation,’ the courts have assigned a common sense interpretation to assigned a common sense interpretation to the term ‘total disability,’ so that total the term ‘total disability,’ so that total disability for purposes of coverage results disability for purposes of coverage results whenever the employee is prevented from whenever the employee is prevented from working ‘with reasonable continuity in his working ‘with reasonable continuity in his customary occupation or in any other customary occupation or in any other occupation in which he might reasonably be occupation in which he might reasonably be expected to engage in view of his station expected to engage in view of his station and physical and mental capacity.” and physical and mental capacity.” Moore Moore v. American United Life Ins. Co., v. American United Life Ins. Co., 150 150 Cal.App.3d 610, 618 (1984).Cal.App.3d 610, 618 (1984).


Common Exclusions & Limitations Common Exclusions & Limitations That Impact MS PatientsThat Impact MS Patients

““Self-Reported” SymptomsSelf-Reported” Symptoms

Mental and Nervous ConditionsMental and Nervous Conditions

““Objective Evidence” requirementsObjective Evidence” requirements


Self-Reported & Mental SymptomsSelf-Reported & Mental Symptoms

Often, the plan will place a limitation on the Often, the plan will place a limitation on the amount of time a claim will be paid for mental amount of time a claim will be paid for mental and nervous impairments and any condition and nervous impairments and any condition which is not “objectively” verifiable. which is not “objectively” verifiable.

Sample Limitation languageSample Limitation language: :

““Disabilities, due to a sickness or injury, which Disabilities, due to a sickness or injury, which are primarily based on are primarily based on self-reported self-reported symptoms, and disabilities due to symptoms, and disabilities due to mental illness, alcoholism or drug abusemental illness, alcoholism or drug abuse, , have a limited pay period up to 24 months.”have a limited pay period up to 24 months.”


The Way Mental & Nervous The Way Mental & Nervous Limitations Should WorkLimitations Should Work

The current test in the state of California is whether the cause, not the symptoms, of the condition causing the disability are physical or mental. For example, a diagnosis of multiple sclerosis would not be considered a mental illness. If this condition caused the mental

illness then the disability would not fall under the limitation, even if the physical condition was not disabling. So, if the claimant was unable to work due to depression resulting

from multiple sclerosis, but not from the physical limitations of the multiple sclerosis,

the mental illness limitation could not be applied.


Self-Reported SymptomsSelf-Reported Symptoms

Sample definition for “self-reported Sample definition for “self-reported symptoms”symptoms” : :

““Self-Reported Symptoms” means the Self-Reported Symptoms” means the manifestations of your condition which you manifestations of your condition which you tell your physician, that are not verifiable tell your physician, that are not verifiable using tests, procedures or clinical using tests, procedures or clinical examinations standardly accepted in the examinations standardly accepted in the practice of medicine. Examples of self-practice of medicine. Examples of self-reported symptoms include, but are not reported symptoms include, but are not limited to headaches, pain, fatigue, limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.dizziness, numbness and loss of energy.www.KantorLaw.net 18

Objective EvidenceObjective EvidenceMany LTD policies contain a provision stating that Many LTD policies contain a provision stating that you must provide the Insurance Company with you must provide the Insurance Company with “objective evidence” of your condition or disability, “objective evidence” of your condition or disability, or they do not have to approve your claim. Look in or they do not have to approve your claim. Look in the portion of the policy titled “Proof” or “Proof of the portion of the policy titled “Proof” or “Proof of Loss” which explains what a claimant must supply to Loss” which explains what a claimant must supply to the Insurance Company. the Insurance Company.

Sample Language: The following items, supplied at Your expense, must be a part of Your proof of loss. Failure to do so may delay, suspend or terminate Your benefits: (and then listed as one of the “items” you are required to submit would be the following) --Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations commonly accepted in the practice of medicine, for Your disabling condition(s).


What evidence do I have?What evidence do I have?

ALL Doctors’ records ALL Doctors’ records Attending Physician StatementsAttending Physician Statements Job descriptionJob description Performance reviewsPerformance reviews Personal StatementPersonal Statement JournalJournal Careful of social medialCareful of social medial Statements from supervisor/co-worker/subordinates, Statements from supervisor/co-worker/subordinates,

caretaker, family and friendscaretaker, family and friends Social security award Social security award Independent medical examinationIndependent medical examination


LTD Insurers Can Obtain LTD Insurers Can Obtain ExaminationsExaminations

DO NOT GO ALONE!DO NOT GO ALONE!

Bring records with you and give them Bring records with you and give them

to the doctor they pick.to the doctor they pick.

Get copy of report from insurer. Get copy of report from insurer.


How do I communicate with the How do I communicate with the insurer?insurer?

NEVER, NEVER, NEVER talk to NEVER, NEVER, NEVER talk to anyone from the insurance company anyone from the insurance company on the phoneon the phone

Send everything in writing, by Send everything in writing, by certified mailcertified mail

Keep a journalKeep a journal Beware of surveillanceBeware of surveillance


WHY WAS MY CLAIM WHY WAS MY CLAIM DENIED?DENIED?

ERISAERISA 100 legitimate claims100 legitimate claims 70 appeals70 appeals 30 lawsuits30 lawsuits 10 lose10 lose 10 settle10 settle 10 win10 win


THE LAW OF ERISA APPEALSTHE LAW OF ERISA APPEALS

There are two critical things to know There are two critical things to know about ERISA appealsabout ERISA appeals

The insured is entitled to a copy of the claim The insured is entitled to a copy of the claim file – sometimes called the administrative file – sometimes called the administrative record – record – beforebefore the appeal is decided the appeal is decided

The insurer or plan may be entitled to The insurer or plan may be entitled to discretion in deciding the appeal discretion in deciding the appeal

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WHAT IS THE CLAIM FILE AND WHAT IS THE CLAIM FILE AND HOW DO I GET IT?HOW DO I GET IT?

The claim file consists of any document, record or The claim file consists of any document, record or other information that was relied upon in making other information that was relied upon in making the benefit decision, was submitted, considered the benefit decision, was submitted, considered or generated in the course of making the benefit or generated in the course of making the benefit decision, or is a statement of policy or guidance decision, or is a statement of policy or guidance with respect to the plan concerning the denied with respect to the plan concerning the denied treatment (29 C.F.R. Section 2560.503-1(m)(8))treatment (29 C.F.R. Section 2560.503-1(m)(8))

The insured is entitled, upon request and free of The insured is entitled, upon request and free of charge, a copy of the claim file (29 C.F.R. Section charge, a copy of the claim file (29 C.F.R. Section 2560.503-1(h)(2)(iii))2560.503-1(h)(2)(iii))

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PLAN DISCRETION: PLAN DISCRETION: THE FOX GUARDING THE HEN HOUSETHE FOX GUARDING THE HEN HOUSE

Many plans/policies provide that the entity deciding Many plans/policies provide that the entity deciding whether to pay claims has the “discretionary authority” whether to pay claims has the “discretionary authority” to construe and interpret the Plan and determine to construe and interpret the Plan and determine eligibility for benefitseligibility for benefits

This means that the court will give deference to the This means that the court will give deference to the decision of the Plan or insurer – the decision DOES NOT decision of the Plan or insurer – the decision DOES NOT HAVE TO BE RIGHT, IT ONLY HAS TO BE REASONABLEHAVE TO BE RIGHT, IT ONLY HAS TO BE REASONABLE

BUT when the same entity is deciding whether to pay BUT when the same entity is deciding whether to pay claims, and is paying approved claims, the Supreme claims, and is paying approved claims, the Supreme Court says there is an “inherent” or “structural” conflict Court says there is an “inherent” or “structural” conflict ((Metropolitan Life Ins. Co. v. Glenn, Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008)) 128 S.Ct. 2343 (2008))

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The fox guarding the hen house The fox guarding the hen house (continued)(continued)

A "structural" conflict of interest introduces an A "structural" conflict of interest introduces an element of skepticism into what would otherwise be element of skepticism into what would otherwise be deferential judicial review. deferential judicial review.

The degree of skepticism depends on the extent of the The degree of skepticism depends on the extent of the conflict. The types of evidence tending to show the conflict. The types of evidence tending to show the influence of a conflict include: influence of a conflict include: inconsistent or insufficient reasons for the denialinconsistent or insufficient reasons for the denial determining a material fact without supporting evidencedetermining a material fact without supporting evidence failing to follow plan proceduresfailing to follow plan procedures failing to provide a full and fair review of the denialfailing to provide a full and fair review of the denial acting as an adversary bent on denying the claimacting as an adversary bent on denying the claim

The more evidence of conflict, the less deference The more evidence of conflict, the less deference afforded to the administrator, and the more "skeptical" afforded to the administrator, and the more "skeptical" the reviewthe review

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WRITING THE APPEAL WRITING THE APPEAL LETTERLETTER

This letter is submitted in support of Jennifer’s appeal of This letter is submitted in support of Jennifer’s appeal of the denial of disability benefits. We will explain the the denial of disability benefits. We will explain the history of Jennifer’s disease and treatment. We trust history of Jennifer’s disease and treatment. We trust that, after reading this letter, which carefully documents that, after reading this letter, which carefully documents Jennifer’s entitlement to benefits, you will approve Jennifer’s entitlement to benefits, you will approve Jennifer’s request.Jennifer’s request.

Summarize the prior letters and documentsSummarize the prior letters and documents Point out the inconsistenciesPoint out the inconsistencies Point out the irregularitiesPoint out the irregularities Point out the omissionsPoint out the omissions Enclose any new documentsEnclose any new documents Conclude with specific requestConclude with specific request

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WHAT TO DO IF THE APPEAL WHAT TO DO IF THE APPEAL IS DENIED. . .IS DENIED. . .

Second Level AppealSecond Level Appeal

Department of InsuranceDepartment of Insurance

Department of Management Department of Management HealthcareHealthcare

LitigationLitigation29www.KantorLaw.net

Multiple SclerosisMultiple SclerosisApplying Through Your Employer’s Applying Through Your Employer’s

Long Term Disability Benefits Long Term Disability Benefits When Your MS ProgressesWhen Your MS Progresses



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