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Summer 2003 

Don’t Derail Your Disability: Tips for Winning Your Insurance Claim
By Ben Glass

Dealing with CFIDS is challenging enough without the additional stress of fighting a disability insurance company. Many workers are insured under policies that are supposed to provide financial protection in the event that they cannot work full-time in their current occupations. But a great number of these claims are denied — not because the claimant is not disabled, but because either the claimant or her doctor made a preventable error when dealing with the insurance company.

Here are six common mistakes, and tips on how to avoid them:

Mistake #1

Not knowing what is in your doctors’ records before you make your claim

Insurance companies will only pay benefits if they are convinced that your medical records contain adequate, objective proof of disability. As soon as you file your claim, these companies will request records from your doctors (and from any doctors referenced in those records) and carefully scrutinize them. You must get these records in your hands before you file your claim. Review them yourself. Are they accurate?

Are they complete? Has the doctor recorded all of your complaints?

In one case, an insurance company denied benefits because included in the records sent by the doctor were the records of another person! Those records said “all is well” and the insurance company relied on those records. The claimant never knew that the files her doctor sent had someone else’s records in them because she didn’t get her doctor’s records first. It was only after she hired a lawyer and sued the insurance company that she discovered this.

Mistake #2

Not understanding your policy before you file your claim

Insurance polices are notoriously hard to understand. You should obtain and review your policy before you file your claim. If your policy is an employer-sponsored policy, you should obtain both the Summary Plan Description (SPD) and the insurance policy itself before you file your claim. The Employee Retirement Income Security Act (ERISA) requires that these documents be made available to you upon written request to the employer’s plan administrator. If you have a private policy and cannot locate it, call your agent. You can obtain a replacement policy (usually for a small fee) from your insurance company. Whether you have an employer-sponsored plan or a private policy, make sure you obtain and read all amendments and endorsements to the policy. It’s also an excellent idea to review the plan with a qualified attorney prior to filing, to avoid costly mistakes.

Mistake #3

Trusting the advice of the H.R. department

Oftentimes employees have been taught to take all questions about benefits, including long-term disability benefits, to the Human Resources department. This well-meaning advice can be fatal to your claim if the advice you get is wrong. We don’t suggest that your employer would deliberately mislead you, but our experience tells us that (1) most human resources personnel are not legally trained in the interpretation of insurance policies; and (2) human resources staffers generally have no pull whatsoever with the insurance company.

Again — unless the employer is actually funding the monthly benefits (and this is a rare occasion) — it is the insurance company that is protecting its own assets. Our experience, based upon reviewing many insurance claim files, is that no amount of pleading by your employer will influence an insurance company that wants to deny benefits to you. You need to take personal responsibility for your own claim.

Mistake #4

Using only insurance company forms to document your claim

When you make a claim for benefits, the insurance company will send claim forms for you and your physician to complete. Typically, the physician forms will have questions such as: “How much can this person lift? How long can he sit? Can she walk long distances?” These questions are irrelevant to many CFIDS claims. The doctor will dutifully answer the questions the insurance company asks, but later the insurance company will say that those answers just weren’t enough information.

You should sit down with your doctor (after having fully reviewed your own records), explain the terms of your policy and get your doctor to set out fully in a report why your sickness or illness prevents you from performing the substantial and material duties of your occupation. The doctor may charge you for this report. Pay the charges! It is far better to have a well-documented claim from the beginning than to have to go back, after you have been denied benefits, and justify your claim. Also, if you have been denied benefits and are appealing your claim, you and your doctor will have a limited time (as defined in your policy) within which to submit additional reports. Why be under time pressure when all of this work can be done before you ever submit your claim?

Mistake #5

Using the insurance company’s lawyers to file for Social Security

If the disability insurance company pays you long-term benefits, you will usually be required to file for Social Security benefits. If you win your case, you typically will be required to reimburse the insurance company, and further benefits will be reduced by the amount of the Social Security payment. If your dependents receive Social Security benefits because of your disability, your payments will also be reduced.

Many insurance companies will offer you the services of their lawyers (or an affiliated law firm) to file for and pursue your Social Security benefits. Don’t use them. We have seen too many instances where these lawyers have steered the claim towards a disability that is favorable towards the insurance company — for example, a mental condition that limits the insurance company’s payments to two years.

We have also seen situations where an insurance company lawyer who is representing a claimant in Social Security proceedings quits the case because the disability insurance company decides to terminate your benefits anyway.

Mistake #6

Not hiring a lawyer experienced in disability insurance litigation

A new client told me recently that “you guys are hard to find.” I asked him what he meant and he told me that he had searched for a long time before he found an attorney who specializes in disability income insurance litigation. Unfortunately, there are just not many of us out there.

Litigation of a long-term disability insurance claim is different from litigation of an automobile accident claim. It is different from many other contract claims. The world of insurance dispute litigation has its own body of case law, history, procedure and terminology. Your attorney should know, before the case begins, what you will need to prove in order to win your case. You should look for an attorney experienced in disability litigation.

Ben Glass is an attorney in Fairfax, Va., who has represented individuals against insurance companies for 20 years. This article is excerpted from his booklet, “14 Ways to Guarantee that Your Long Term Disability Claim is Denied, and You Lose in Court (avoid them and you may have a chance at winning).” The complete booklet, which contains examples and documents from actual cases, is available for free by calling 800-561-1670, ext. 320.