Becoming disabled has a huge impact on your financial future. In the winter issue of
attorney Scott Riemer explained in his article, "What to Do if You Become Disabled," your legal rights
before you leave a job because of a
disability. In this second article, Riemer provides common sense tips on what to
do if your disability claim is denied.Disability benefits are often denied at a
time when you are least able to handle it emotionally. Not only are you learning
to cope with the limitations of chronic fatigue and immune dysfunction syndrome
(CFIDS), you now have to deal with a depersonalized bureaucracy on an issue
central to your financial security.
If your disability benefits are denied, understanding the appeals process and knowing
what your rights
are and what steps you can take are paramount to successfully overturning a denial.
The appeals process
All employer-provided disability plans have an appeal
procedure. The first step when a claim is denied is to exhaust all internal
administrative appeals. If you complete this procedure and your appeal is
denied, you then have the option of suing an insurer. Appeals should be taken
very seriously. Not only could the insurer reverse the denial, but the appeal
presents a valuable opportunity for you to create a strong case should a lawsuit
be necessary. Conversely, if you don’t create a solid case during the appeals
process, you could fail in a future lawsuit.
Before beginning the appeals process, understand your rights. Under the Employee Retirement
Security Act (ERISA), you are entitled to a full and fair review of your claim, and you must be told in
writing: (a) the specific reason for the denial; (b) the plan provision(s) on which the denial is based;
(c) any additional material and information that is needed before the insurer will pay the claim and an
explanation of why this is needed; and (d) the steps that must be taken to appeal the denial. If your
denial letter fails to tell you any of this, your ERISA rights have been violated.
If your denial letter doesn’t satisfy these requirements, send a letter to the insurance
the deficiencies. Note the date that an appeal must be sent to them. Many courts enforce these deadlines,
so a timely appeal is very important.
If the denial letter specifies that your records were reviewed by a doctor on behalf
of the insurer,
include in your letter a request for the doctor’s report and any other information they may have relied
on in denying your benefits. In addition, if you have not already done so, request copies of the plan
Show the denial letter to your doctor and have him or her prepare a report addressing
in the denial letter. Gather all medical evidence supporting your claim, including your doctor’s notes
from office appointments or other medical records. Also include literature on CFIDS to support your case.
Frequent denial reasons
The following are among the most common reasons insurers
will deny benefits:
"There is no objective evidence in support of total disability." Denial
reason is very common in CFIDS cases. If your denial letter says this, check the
language of your policy or plan. If the plan doesn’t require objective evidence
in support of disability, some courts will rule that this is not sufficient
reason for a denial.
Ensure that your doctor’s letter describes any objective evidence establishing your
the very least, your doctor should include a statement on whether your symptoms are consistent with your
"We have spoken with your doctor and he agrees with us." If your denial
that the insurer spoke with your doctor, who agrees with them, check with your
doctor. Often, it is just not true. If this case, have the doctor write a letter
to correct the record. Sometimes your doctor’s records do contain information
that could damage your case, so reviewing them before they are sent to the
insurer is best. You can them ask your doctor to revise or qualify the report.
If the records have already been sent to the insurer and the damage is already
done, ask your doctor to write a letter explaining away the damaging information
or to explain how you are disabled despite the information.
"Your job was sedentary and you are not disabled from performing sedentary work."
It is hard to quantify fatigue and pain. Therefore,
insurers will often say your job didn’t involve much physical activity and that
despite your fatigue and pain you can perform your duties. Obtain a letter from
your doctor stating that you cannot work even in a sedentary job. In some cases,
a description of your duties from your employer can show that your duties
weren’t sedentary or that considerable cognitive abilities were required, which
have since diminished.
"We had your records reviewed by Doctor X. Dr. X says you are not disabled."
a copy of Dr. X’s report and have your doctor contest it. You could argue that
your condition cannot be evaluated without a physical examination, but this sets
you up for an independent physical examination. Be sure to assess the risks and
benefits of such an evaluation.
"You are no longer disabled." Insurers periodically review
the cases of individuals receiving benefits. You have the right to appeal this
denial just as you did during the initial application for benefits. These
discontinuations often can be refuted by demonstrating that your condition has
Once you have responded to the denial of benefits, gather all evidence in support of
your claim, including
a report from your doctor and any relevant medical records. Send a letter to the insurer stating why their
decision was not in accordance with the evidence.
The insurer’s response
If benefits are still denied after appeal, you may want
to consult a disability attorney to determine if you have a reasonable chance of
collecting disability benefits if you sue the insurer.
In some instances, the insurer will offer a lump sum settlement or the option of participating
rehabilitation program. Think long and hard before you agree to either of these. The insurer would not
be offering them to you unless the company believed it was in its best interest.
Lump sum payments. In exchange for a release of all legal rights under
policy, insurers may offer you a lump sum cash amount. The pros of a cash
settlement are that you will have cash now, which could help you get through a
trying time. You also will not have to worry about an insurance company
constantly monitoring your progress, requesting that you provide periodic
reports, and/or submit to physical examinations.
The downside of lump sum settlements are that they are almost always significantly less
than the present
value of your benefits, so you would be wise to consult an attorney to determine if the settlement is
Rehabilitation programs. Insurance companies adopt rehabilitation programs
the benefits they pay. They are not for your benefit. Rehabilitation programs
may sound very appealing, because no one wants to be disabled with CFIDS,
however, they can be a Trojan horse. We had a client who expressed interest in
such a program. Once he did, the insurer told him that he must be able to work.
The insurer then subjected him to a functional capacity evaluation and
discontinued his benefits—without him ever participating in the program.
There is much you can do to ensure your financial future, but by far the most important
is just being
cognizant of the process.
Scott M. Riemer is an attorney specializing in long-term disability litigation. He may
be reached at
212-297-0700 or by writing to 60 East 42nd Street, 47th Floor, New York, NY 10017. His e-mail address