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.

Serious Injury Claim: Mortuary Negligence

Our client was 4-1/2 months into her first pregnancy when she was admitted to the hospital in labor and her first child was stillborn.  The stillbirth was devastating to the parents.  After the stillbirth, our client held her baby and stayed with him until released the next morning.  Her sorrow was so deep that she developed pains in her chest which she described as her heart being broken.  The parents arranged to have their son buried at Greenwood Cemetery.  They brought in clothing for their son, a blanket, teddy bear and prayer card to be placed in the casket.  The mortuary told them they would wash and dress their baby before placing him in the casket.  The parents were at the grave site awaiting the burial ceremony when our client asked to view her baby one last time.  Thereafter it was discovered that there was no baby in the casket.  A bucket containing a placenta was all that was found in the casket.  Our client was so distraught she passed out at the grave site.

Later, a body was presented by the mortuary as the parents’ baby.  DNA testing confirmed that the body was their baby and a month later a proper burial was given to their baby.

While awaiting DNA verification our client feared they may never find her baby.  She became very depressed, remaining at home in the dark.  She could not speak to anyone about the events.  She eventually obtained counseling with her husband.  Our client was diagnosed with severe depression and post-traumatic stress syndrome for which he had to be medicated.  There were points where she could not go on with therapy and points at which the marriage was in danger of dissolving.

The parents believed that both the hospital and the mortuary were negligent – the hospital for failing to release their son to the mortuary driver and the mortuary for attempting to bury the placenta instead of their son.  The hospital settled with the parents.  The mortuary refused to settle.

StennettCasino took the case to trial.  The jury found the mortuary responsible and valued the parents’ emotional distress damages at $600,000.

Injury/Wrongful Death Claim: Professional Negligence

Our client was mother of an adult son who had suffered from polio his entire life.  Although quadriplegic, he was able to survive using a ventilator that supplied air through a hole in his throat.  Even though he was physically challenged, he was able to attend classes with assistance funded by his church.  He had a good sense of humor, love of life, and fondness for people.

Our client’s son required frequent suctioning of his lungs to keep him from suffocating on mucous.  Because he could not breathe on his own, the ventilator sounded an alarm when enough air was not being pumped into his lungs.  This happened when the breathing tube in his throat was removed or malfunctioned, when his lungs needed suctioning, and when after suctioning, the tube was not properly reinserted in the hole in his throat.  The alarm was vital to his life.

Our client had to have surgery which required her to place her son (then 43) in a care facility specifically for high maintenance patients.  While at the care facility, our client’s son died from lack of oxygen.  His breathing tube had not been properly inserted, but the staff was unaware of this because they had turned off his ventilator alarm to keep it from disturbing other patients at night.

We represented our client for the wrongful death of her son.  Through discovery we proved that the care facility staff had turned off the ventilator alarm.  We obtained a substantial settlement for our client.  As part of our case we pursued and were successful in having fines imposed against the facility for regulatory violations.

Wrongful Death Claim: Defective Tire

The client’s husband left for work one morning in the company pick up truck.  He was driving north on I-15, when his vehicle suddenly went out of control, went off the road, and rolled over.  He was ejected and died at the scene.  His surviving wife, our client, was pregnant with their first child.

Our investigation uncovered the fact that the right rear tire tread had peeled off the truck tire.  We retained scientific experts who concluded that the defective tire caused the loss of control.  We filed a lawsuit against the tire manufacturer.  The tire manufacturer, after blaming everything and everyone for the tire failure but its own design, began pointing the finger at the car manufacturer.  The tire manufacturer contended the tire failed because it had been a spare, mounted by the truck manufacturer in a place where heat from the tailpipe damaged it.  We settled the case before trial and both manufacturers paid substantial amounts of money.

Fire Insurance Claim: Inadequate Coverage

The client purchased his home and Homeowners policy in 1993.  The insurance company’s agent placed $180,000 in dwelling coverage on the home without inspecting it.  The Homeowner questioned his agent because he had paid much more for the home.  The agent assured him that $180,000 was sufficient to rebuild the home and said the homeowner also had nothing to worry about because he had “guaranteed replacement cost” coverage.

After a fire destroyed his home the homeowner discovered that rebuilding it would cost $385,000.  Making matters worse, his insurance company claimed he no longer had “guaranteed replacement cost” coverage, saying it was taken away by a policy amendment buried in a renewal notice sent to the homeowner eight months before the fire.   Of course, the homeowner had no documentation because all possessions were destroyed in the fire.

When the client retained us, we tried to persuade the insurance company to pay his full home rebuilding costs on two grounds.  First, the agent had assured our client that $180,000 was enough to rebuild the home.  Second, our client was still entitled to “guaranteed replacement cost” because the insurance company had not complied with the law requiring it to give the client, the homeowner, “conspicuous notice” if it reduce his insurance coverage.  The insurance company still refused to pay the full cost of rebuilding.  We filed a lawsuit, and obtained a court award under which the insurance company not only had to pay the full cost to rebuild the home, but also additional amounts for loss of contents, landscaping, demolition, etc.  The award totaled more than $700,000 – money our client then used to rebuild his home.