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How Do I Win My Disability Benefit Appeal?

The filing of a disability insurance appeal following a denial of long term disability benefits requires a tremendous amount of preparation and attention to detail. Your appeal is your only opportunity to submit evidence in support of your claim. If your appeal is denied and a lawsuit must be filed, then you will not be allowed to provide any additional evidence. You must submit the best appeal possible the first time in order to have a chance to win at court if you lose your appeal.

If your disability benefits were provided as an employee benefit, the law of ERISA will usually apply and you must appeal the denial to the insurance company that denied your claim. In this article and the many videos our disability lawyers have created about disability insurance appeals there are some steps that apply to all claims, but the facts and circumstances of your disability claim make every disability appeal unique. In this article we provide a how to file a disability insurance appeal guide and the basic steps that you must take to file a disability insurance appeal governed by ERISA.

Step 1: Review the Disability Benefit Denial Letter and Identify the Appeal Due Date

Your disability insurance company is required to provide you with a denial letter that explains the reason that your claim has been denied, specific disability plan provisions on which the denial is based, a description of additional information necessary for you to perfect your claim,  and the time frame you have to submit an ERISA appeal of the claim denial. In most cases you have 180 days from the date of the initial denial to submit your appeal. This is a strict deadline and if you are even one day late, you could waive your right to challenge the denial. The claims procedures that explains how a long term disability appeal and claim must be handled are governed by the Code of Federal Regulations Section  2560.503-1 also known as the “ERISA Regulations”. The ERISA regulations are not easy to read and there is extensive case law about the interpretation of almost every section of the regulations. The US Department of Labor has prepared a brief guide to filing for disability claims which is a brief summary of the ERISA regulations.

STEP 2: Request a Copy of the Claim File From the Disability Company

ERISA regulations require the disability company, at no charge, to provide a complete copy of the entire claim file related to your disability claim denial. This claim file is usually hundreds to thousands of pages depending on the duration of your claim and quantity of medical records.

The claim file will contain:

It usually takes the disability company 30 days to prepare and mail this information.

STEP 3: Review the Claim File and Plan Your Appeal Strategy

Once you receive the claim file it must be reviewed and compared to the denial letter. The medical reviews conducted by the insurance company are very important documents that will reveal the insurance company’s medical basis for denying your benefits. You will often find multiple medical reviews such as a nurse review and a medical doctor review. You will often find that the denial letter is a copy and paste of the medical review conducted by your insurance company. In the claim file you may also find a vocational review which discusses the insurance company’s view of your occupational duties in your occupation or any gainful occupation. 

You will also find notes in the file which chronologically track every action the disability company took on your file. After reviewing the complete claim file you should be able to determine a strategy as to the additional information or arguments you will need to make in order prove that the disability company should reverse their claim denial. The biggest challenge is obtaining the additional evidence to support your arguments.

STEP 4: Obtain Additional Medical Support to Prove You Are Disabled

This is the most challenging part of your disability appeal because your doctor(s) have already submitted documentation that you are disabled and it was not enough for the disability company. You need to work with your doctor and determine what additional medical testing or evaluations you can undergo in order to provide evidence of your restrictions and limitations.

You need to consider if you should consult with a new doctor or a doctor in a different medical specialty in order to get more medical support. It may be possible that your claim would benefit by undergoing additional diagnostic test (MRI, CT Scan, EMG, Blood Test, X-Ray, etc.) functional capacity testing, neuropsychological evaluation, or an independent medical exam. You may want to bring the insurance company medical reviews to your doctor and ask them what else can be done to prove your disabling conditions.

In the appeals that we handle for clients we help clients obtain additional medical evidence and then we prepare a custom attending physician statement for your doctor. The custom attending physician statement is designed to address the restrictions and limitations that are related to the occupational duties that you cannot perform. We work with your doctor to make sure everything the doctor has to support your claim is included.

Another good thing to do is to include supporting medical literature that supports the symptoms and limitations you experience as a result of your medical diagnosis. Pubmed.gov is a great resource to find published medical literature that can support your claim and should be submitted with your appeal.

STEP 5: Prepare a Vocational Analysis or Labor Market Survey

Your definition of disability requires you to be unable to perform the duties of your occupation or any gainful occupation. Most disability companies will minimize your occupational duties and try to classify your job pursuant to an occupational classification such as sedentary, light, medium or heavy duty. The disability company will often have their in-house vocational consultant prepare a report that identifies the duties of your occupation.

You do not and often should not agree with the vocational report prepared by your insurance company. You should perform your description of your job duties and provide research from your job industry to support how the job is actually performed. Be careful of the argument that the disability company is looking at how your job is performed in the national economy and not how you actually performed the job for your employer. In this scenario you must be able to argue that the way you performed your job is how it was done in the national economy.

When our disability attorneys submit an appeal for a client, we often submit a vocational analysis that contains extensive occupational information about your job. We also regularly hire vocational consulting experts to prepare detailed reports which analyze the occupational duties that the disability company claims you can perform and compares them with a detailed review of your medical restrictions and limitations. The vocational expert will also prepare a labor market analysis to determine if any the jobs suggested by the disability company are actually available and if you could meet the requirements of those jobs.

STEP 6: Prepare a Personal Statement and/or Co-Worker Statement

You should prepare a personal statement in which you describe what a typical day is like for you and why you would not be able to work on a reliable and consistent basis for an employer 8 hours a day / 5 days a week. This statement must be 100% truthful and you should assume that if you say anything inconsistent that the disability carrier may do more video surveillance to challenge your statements.

The disability company will also check your social media profiles for any inconsistency in your statements. If you have the ability to maintain symptom or pain log for 30 consecutive days, this could be great evidence to explain why you could not work. It is great to get a statement from a past co-worker or supervisor that can document some of the difficulties you had to perform your job.

You can also submit statements from any family members or friends that are aware of your medical limitations and can share their opinion about how you are limited.

STEP 7: Draft Your Appeal Letter

If you have completed steps 1 through 6 up to this point, then 75% of the work is done and the actual appeal letter is your time to bring it all together. To get to the point of actually writing the strongest appeal letter possible it should have taken a few months of obtaining information. The appeal letter we submit for claimants are strategically drafted to focus on why our client is disabled and not focused on what the disability insurance company did not do.

The standard of review in most ERISA disability claim denials is whether the disability insurance company acted reasonably in their review. You don’t want to write an appeal attacking the disability company and telling them everything they did wrong. If you try the attack strategy that most people employ, then you are actually telling the disability company the mistakes they made and giving them a road map to act reasonably. If the disability company follows your roadmap and still disagrees then it will be almost impossible for you to win upon the filing of a lawsuit.

Keep your appeal to the facts and strategically write your appeal so that no reasonable person reviewing the appeal would think that you could work. Another misconception is that you should include legal cases in your appeal. There is no reason for you to try to do legal research and submit legal cases as this will only hurt your claim and give the insurance company a guide to reasonably review your claim denial. Your lawyer will be able to argue any case law they want if the case goes to court. Our appeals are usually at least 30 pages long and we consider the impact of every piece of evidence and every statement we include.

Once you have finalized your letter make sure you refer to all of your new evidence with attached Exhibit numbers and include with your appeal submission. Mail your appeal with a verified return receipt.

During the appeal process the disability company make request to have you examined by a doctor(s) of your choice. The insurance company may also want to speak with your doctor(s) or they will submit letters with questions to your doctor(s). Your doctors must be prepared and they must respond timely. In many cases the disability company will perform another paper medical review and they will send you a copy of the medical review for your comments. The decision as to how to reply will depend based upon the review that has been conducted. If you have been requested to be examined you should consider requesting a video recording of the exam and bring an independent witness with you. Be very cautious when speaking to the disability company.

We hope the above 7 steps to filing a disability insurance appeal gives you a good starting point for a preparing an appeal. Our law firm has prepared thousands of ERISA disability appeals and we are available to provide you with a free initial review of your disability denial. We represent claimants nationwide and when you contact us you will immediately speak with a disability insurance lawyer. We look forward to discussing your disability insurance appeal with you.

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FAQ

Do you work in my state?

Yes. We are a national disability insurance law firm that is available to represent you regardless of where you live in the United States. We have partner lawyers in every state and we have filed lawsuits in most federal courts nationwide. Our disability lawyers represent disability claimants at all stages of a claim for disability insurance benefits. There is nothing that our lawyers have not seen in the disability insurance world.

What are your fees?

Since we represent disability insurance claimants at different stages of a disability insurance claim we offer a variety of different fee options. We understand that claimants living on disability insurance benefits have a limited source of income; therefore we always try to work with the claimant to make our attorney fees as affordable as possible.

The three available fee options are a contingency fee agreement (no attorney fee or cost unless we make a recovery), hourly fee or fixed flat rate.

In every case we provide each client with a written fee agreement detailing the terms and conditions. We always offer a free initial phone consultation and we appreciate the opportunity to work with you in obtaining payment of your disability insurance benefits.

Do I have to come to your office to work with your law firm?

No. For purposes of efficiency and to reduce expenses for our clients we have found that 99% of our clients prefer to communicate via telephone, e-mail, fax, GoToMeeting.com sessions, or Skype. If you prefer an initial in-person meeting please let us know. A disability company will never require you to come to their office and similarly we are set up so that we handle your entire claim without the need for you to come to our office.

How can I contact you?

When you call us during normal business hours you will immediately speak with a disability attorney. We can be reached at 800-682-8331 or by email. Lawyer and staff must return all client calls same day. Client emails are usually replied to within the same business day and seem to be the preferred and most efficient method of communication for most clients.

Dell & Schaefer Client Reviews   *****

Ravindra P.

I have been a client of Dell & Schaefer for the 6 months and they have already successfully taken my disability claim to approval. It is privilege to write this testimonial. I am a professional myself, a physician and to me these are some of the core strengths of Steve Jessup and his team.

Listening to the client: Attorneys at Dell & Schaefer really listen to you explain your special situation and undoubtedly every one of us has a special circumstance and specific wishes as to what we want. Most of the time attorneys and in general most professionals these days, will listen to you a couple of minutes and then file you away in a category or a bin and chalk out a plan for you in their mind and stop listening to you and start thinking about the next thing that they have to do. That is why these interactions are so often exasperating for the client.

As a physician I used to try and teach medical students that any well trained monkey can read a few books and do a particular thing in a particular situation, it is however extremely essential that you determine what the situation is and no one understands the situation better than your client or patient. I spoke to a couple of attorneys at D&S, initially with someone who took my call and then Steve who was assigned to me and it was impressive that they really tried to get what I was trying to convey, what my special and unique situation was (and whose isn’t?) and what I wanted.

Shock and Awe: At Dell & Schaefer they don’t go in halfway prepared. Their philosophy is to get well prepared and go in guns blazing. They will make you work on your mission until all anticipated difficulties have a contingency plan before even the adversary is intimated of the challenge. I believe it was Sun Tzu who said that the best battles are won before they are fought. Frequently you are a small David pitted against a Goliath adversary with deep pockets and a much larger time horizon. But you do have an advantage, that of time for preparation. The adversary does not know of the battle until you tell them and then the clock starts ticking. At Dell & Schaefer they make full use of your advantage by preparing your case with utmost thoroughness before the engagement.

Art of the possible: Legal action, just like life, is the art of the possible. I have dealt with 5 other attorneys in my career and only one of them apart from Dell & Schaefer understood this. A professional’s job is to tell you what the score is, what possibly can occur in the future and what measures can be taken to favorably change the future. And the last one is possibly the most vital. You don’t want your attorneys telling you all the time why things cannot be done, how laws are stacked against you, how global warming is melting the icecaps, how the oil is running out and how dogs sometimes eat homework assignments. You want them taxing their brains to see what can be done in best manner possible, so the future, which is not yet written, changes favorably for you. Attorneys at D&S get this and consciously incorporate it in their work ethic.

They say that there are four professionals in your life who should also be your friends. Doctor, Lawyer, Accountant and Banker. There is a deeper side to this sound bite that some people get and some don’t. I live at the other end of the country from where Dell & Schaefer work and play, but the world is small and getting smaller and perhaps someday I can add to my stock of friends.

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