Stennett & Casino - Attorneys at Law

My Disability Claim is Denied – Next Step

You receive a letter from your insurance company advising you that your disability claim is denied or terminated. After the initial shock wears off, what steps can you take to obtain your disability benefits? What you should NOT do is immediately write back, telling your insurer they have made a mistake, and ask them to reconsider your claim. You will eventually want to do so; however, there are several steps you need to take first.

If your disability policy is part of an employee benefit plan then it is probably governed by Federal Law known as the Employee Retirement Income Security Act (ERISA). Under ERISA, the insurer/plan must give you 180 days following a termination or denial of benefits in which to request an administrative appeal or review of your claim. However, most plans give you only one shot at an appeal. Thus, you must use this opportunity wisely.

The first thing you should do is request from the insurer, a copy of their entire file on your claim. They are obligated to provide it to you, without cost, within 30 days of a written request. Once you receive this file you should go through and organize it in some fashion, i.e, putting all the medical records together segregated by provider and in chronological order. Once you have organized the file it will be easier for you to see what is missing from the records. If they had your file reviewed by their own medical or vocational consultants, you will see their reports and have a better understanding of why they denied or terminated your claim.

You should also obtain, if you do not already have it, a copy of the plan or disability policy that sets forth all your rights and obligations. You should be able to obtain the policy from the administrator of the plan who is typically the employer. However, if there is a claims administrator, then they will most likely be able to send that document to you.

It is at this point I would strongly suggest you contact an attorney. An initial conference with an attorney should not cost you anything. However, make sure the attorney is experienced in handling ERISA benefit claims. The law applicable to these claims is unique and technical. If you have done your homework and have the claim file, the policy and your letter of denial, you should be able to answer many of the questions the attorney will have to help you evaluate your claim. You are most likely emotionally attached to your claim and getting input from an experienced attorney can often be enlightening. Remember, the fact that you are disabled does not guarantee that you will receive benefits. It does not matter how many times you tell the insurer that you are in pain and cannot work. What is important is the presentation of evidence that sets out your physical limitations associated with your illness or injury and how those limitations preclude you from performing the duties of a job.

My Space, Facebook Could Damage Disability Case

Facebook, Twitter, My Space, etc. (collectively referred to as social media sites) are popular with people of all age groups. Long term disability insurance companies and their attorneys use these sites also, to get information about YOU. There may be valuable information about you on these sites that could severely damage your long term disability claim.

The long term disability insurance adjuster’s job is to pay you as little as possible or to even deny or terminate your claim. Social media sites and blogs can help the adjusters do their job. The adjuster will try to disprove the extent and nature of your disability by viewing your activities depicted on the internet. Why do long term disability insurance companies look at social media sites?

1. Doctors rely, in part, on your history and complaints in rendering an opinion about your diagnosis. The long term disability carrier will use the social media site to confirm or disprove that your activities and life style depicted on the internet support the information you gave your doctors that formed the basis of their opinions.
2. The long term disability insurance company asks you to complete Activities of Daily Living forms, reporting your level of activity. If you say you cannot walk distances and there is a picture of you at Disney on your social media site, you have a problem.
3. If you claim you are depressed or withdrawn, the long term disability carrier will use social media sites to confirm or disprove whether you interact normally with friends and family.

Pictures, videos, personal information, posts and comments can damage or even destroy your long term disability case. Do not post anything you would not feel comfortable having the insurance company or judge read. Check your privacy settings immediately and block anyone you do not know from viewing your personal pages. Search your name on all sites and on Google. See what comes up. Take appropriate action to remove photos which could be detrimental to your claim. Do not accept any friend request or answer any emails from people you do not know.

Lump Sum In Lieu of Future Disability Payments?

Frequently an insurance company that has been paying monthly disability payments to you will offer to cash you out. What this means is that in lieu of the future monthly disability benefit payments they will offer to fully discharge the future obligations by paying you a lump sum of money. You will receive a letter from them outlining what will be paid and how the amount will be calculated.
Before agreeing to settle on this amount, several factors need to be assessed such as the present value of your claim; your statistical life expectancy; and the anticipated future interest rates. It is imperative and often required by the insurance company that before accepting this amount you consult with an attorney.

An attorney who is experienced in handling disability claims will review the claim not only from the standpoint of the fairness of the cash out offer but also among other things will review the insurer’s calculation of the monthly disability benefit, (which may be in error) and the interest rate used by the insurer in calculating present value. For example, our office recently reviewed a cash out offer by CIGNA where we found that over several years CIGNA had been underpaying the monthly benefit. We not only recovered those benefits for the client, but also obtained a much larger lump sum buyout for the client.

When you get one of these letters you should immediately contact an experienced disability attorney. Often the insurance company will pay for an attorney to review the buy out agreement. So you truly have nothing to lose in contacting an attorney.

Death Caused by Accidental Overdose of Prescription Drug is Covered Under an Accidental Death Policy

Accidental death policies, by definition, provide benefits when the insured dies as the result of an accident. However, not all accidents are covered since most policies have exclusions limiting the type of accidents that will be covered. State Insurance Codes have placed limitations on what exclusions an insurance company can place in such policies.

I assisted a recent client whose 59 year old mother died of an accidental overdose of her pain medication, Oxycodone. Her mother was insured with an accidental death policy from Stonebridge Life Insurance Company. However, her claim for benefits following her mother’s death was denied.

Stonebridge Life denied the claim citing two exclusions in the policy. The first exclusion excluded losses caused by the use of intoxicants or prescription medications unless taken as prescribed. Stonebridge Life asserted that the insured took more than the prescribed amount, giving rise to the exclusion. The second exclusion cited by Stonebridge Life was an exclusion for losses caused by illness or the treatment thereof. Stonebridge Life asserted that the medication was a treatment for chronic pain and thus, again was excluded by the policy.

On behalf of my client I argued that California Insurance Code Section 10369.12 limits the insurance company’s ability to exclude death caused by drugs. Section 10369.12 allows an insurance policy to include an exclusion “in the form set forth herein.” The exclusion for intoxicants in the Insurance Code states:

“The insurer shall not be liable for any loss sustained or contracted in consequence of the insureds being intoxicated or under the influence of any controlled substance unless administered on the advice of a physician.

Stonebridge Life’s exclusion in its policy was similar, but not identical to the above language. The crucial difference was that Stonebridge Life’s exclusion excluded losses caused by a person using drugs unless taken or used as prescribed by a physician. This language clearly required the insured to take the medication within prescribed amounts. We argued that the language from California Insurance Code – unless administered on the advice of a physician – does not require the patient to take the medication exactly as prescribed.

A Federal Judge in the Northern District of California agreed with our interpretation of the Insurance Code and the policy and has ruled that in California an insurance company cannot exclude death caused by an overdose of prescribed medication, even though the decedent took more than was prescribed by his/her physician. Based on the same reasoning, the court held that the medical treatment exclusion was inconsistent with the California Insurance Code since it would be just another method of getting around the limitations set forth in California Insurance Code Section 10369.12 with regard to losses caused by use of prescription medication.

The opinion of the court in Smith v. Stonebridge Life Insurance Co can be found on Westlaw at 2008 WL 4531818.

Hardford Recipe For LTD Denial

If you are receiving benefits under a Hartford disability policy then you should be aware of its recipe for denial. I have seen a consistent pattern of termination of benefits by Hartford. The strategy is to set a trap for the beneficiary that can be avoided if you are aware of the following.

Regardless of the form of your disability Hartford will send a functional capacity evaluation form to the treating doctor which will ask him/her to delineate the number of hours their patient can sit, stand, walk in an 8-hour work day. It will also ask many other questions regarding the patient’s functioning. Typically, the doctor will rely substantially on the patient’s statements of disabilities. The trap is this. The form typically does not conform to the individual disability that you may have. Thus though you may be able to sit for only 20 minutes in a work setting in front of a computer on a consistent basis, you may be able to sit for 2 hours in a car. Or, on a good day you may be able to do much more than on a bad day, which typically will follow a day of activity. Thus, the problem in a work setting becomes the inability to perform the same function day after day, 8-hours a day. The functional capacity form is typically filled out by the doctor and by the patient on the basis of the worst case scenario. Thus, the doctor may state that the patient can sit for only 20 minutes consecutively. What the doctor should be stating is that the patient is limited to 20 minutes sitting at a work station consecutively before their abilities to concentrate, etc. are interfered with by pain and discomfort. Or that their capacities vary and thus their limitations are based on an inability to perform consistent, day-after-day activities.

The trap is that once the physician sets out the limitations as being the ability to sit “only 20 minutes at a time,” then Hartford sends a surveillance team to videotape the insured. Hartford will camp out at your residence at 6 a.m. and follow you for the entire day. They will do this for 2 to 3 days and if they are unsuccessful in finding you doing any activities they will come back another time and do it again. Inevitably, the insured will leave their home and perform errands such as shopping, going to the bank, going to church, etc. These errands will typically show the insured doing things beyond the limitations placed in the functional capacity evaluation forms completed by the treating doctor.

Once the surveillance is completed then Hartford will send an adjuster to the insured’s home for a 2 to 3 hour interview. During the interview they will obtain a signed statement from the insured listing all the limitations they have due to their disability. Then they pop out the video and ask the insured to identify themselves in the video and that indeed it reflects their abilities. The video will show the insured getting in and out of cars, driving cars, sitting in cars for extended periods of time, doing extended shopping for a half day or more. These will be perceived as inconsistent with the limitations the insured and the treating physician placed and thus makes the insured’s claim of disability appear to be false.

The reality is that an individual who is disabled from the grinds of a 40-hour work week is not necessarily disabled from life. They still have to perform activities of daily living that are required, whether one is working, or not. The abilities to go to the grocery store and the bank do not correlate with the ability to work a full time job. However, Hartford’s strategy is to get the insured to at least appear to overstate their disability and then discredit them with the video. If you understand Hartford’s strategy you can avoid the trap. Don’t place unrealistic, definite time limitations on any of your capacities. Concede your ability to do what you can do, with the important aspect being the things you cannot do that prevent you from returning to work.