Multiple Sclerosis
Applying Through your Employer’s
Long Term Disability Benefits
When Your MS Progresses
Lisa S. Kantor, Esq.
Kantor & Kantor
Attorneys at Law
(877) 783-8686
www.KantorLaw.net
LKantor@KantorLaw.net
Taking Care of Yourself
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Treating physician
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Specialists and special tests
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Help at home
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Employer
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Insurance Company
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Treating physician
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Is your doctor qualified?
Telling your doctor the whole truth
Remember medication reactions
Don’t miss appointments (without calling)
Follow her advice
Don’t belabor disability issues before you
are ready to make a claim
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Specialists and special tests
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Go to recommended specialists
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Take all recommended tests
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Follow their advice
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Short and Long Term Disability
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Short Term Disability provides benefits to a person
for a short period of time. The duration is usually 6
months, although this can vary somewhat from policy
to policy. These benefits are provided weekly and pay
a varying percentage of a person’s salary, again
depending on the policy.
Long Term Disability provides benefits to a person
for a much longer period of time. Typically until the
person turns age 65. These benefits are provided
monthly and typically pay 60%, 66 and 2/3% or 50%
of person’s salary.
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Disability Insurance
Two different types:
1.
2.
Benefits you have through your Employer (even if
you paid some or all of the premium) – covered by
the Employee Retirement Income Security Act
(ERISA) [Note: Does not apply to government or
“church” employees];
A disability policy you purchased on your own,
through an insurance agent.
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Employer Benefits – ERISA
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ERISA is a federal law that governs your rights
If you are denied, you must appeal if you want to file a
lawsuit
Insurers may be given great leeway
No jury trials
Federal judges make decisions if you have to file suit to
get your benefits
Even if you win, you may have to pay at least some of
your own attorney fees.
Offsets are taken for certain worker’s compensation
benefits, social security and other disability benefits
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Individual Insurance
(includes non-employer groups)
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Typically no appeals required before you
can file a lawsuit
Juries (not lifetime appointee judges)
make the decision on your case
If you win, your insurance company will
likely pay at least a portion of your
attorney fees
Usually, no offsets are taken for social
security or other disability benefits
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Important Differences Between
ERISA and Individual Coverage
ERISA Plans:
Benefit based on %
Individual Coverage:
Specific $ per month
No individual underwriting
Individually medically
underwritten
Cheaper – and your
employer may pay
More expensive and you pay
all the premium
Offsets taken
Offsets not taken
Remedies restricted
Bad faith remedies
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OFFSETS
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ERISA disability insurance really provides
only supplemental coverage
Short term disability is supplemental to
state disability and worker’s compensation
temporary total disability (TTD) payments
Long term disability is supplemental to
social security disability, worker’s
compensation TTD payments, and other
income replacement payments
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Submitting a Claim
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What coverage do I have?
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What evidence do I have?
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How do I communicate with the insurance
company?
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What Coverage Do You Have?
Read Your
Plan or Policy
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Without it, you don’t know the rules.
If you don’t have it, ask for it from your
employer or insurance company – IN
WRITING – CERTIFIED MAIL, RETURN
RECEIPT REQUESTED!
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How LTD Insurers
Define Disability:
“Own occupation” - Typically, you will be required
to prove that you are not capable of performing
the material duties of your occupation due to
your impairments.
“Any occupation” - Usually, after a period of time
(24 months is common) you will have to show
there are no occupations you can do based upon
your education, training and work experience.
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CALIFORNIA LAW REGARDING
“ANY OCCUPATION”
“When coverage provisions in general disability
policies require total inability to perform ‘any
occupation,’ the courts have assigned a common
sense interpretation to the term ‘total disability,’
so that total disability for purposes of coverage
results whenever the employee is prevented
from working ‘with reasonable continuity in his
customary occupation or in any other occupation
in which he might reasonably be expected to
engage in view of his station and physical and
mental capacity.” Moore v. American United Life
Ins. Co., 150 Cal.App.3d 610, 618 (1984).
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Common Exclusions & Limitations
That Impact MS Patients
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“Self-Reported” Symptoms
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Mental and Nervous Conditions
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“Objective Evidence” requirements
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Self-Reported & Mental Symptoms
Often, the plan will place a limitation on the
amount of time a claim will be paid for mental
and nervous impairments and any condition
which is not “objectively” verifiable.
Sample Limitation language:
“Disabilities, due to a sickness or injury, which
are primarily based on self-reported
symptoms, and disabilities due to mental
illness, alcoholism or drug abuse, have a
limited pay period up to 24 months.”
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The Way Mental & Nervous
Limitations Should Work
The current test in the state of California is
whether the cause, not the symptoms, of the
condition causing the disability are physical or
mental. For example, a diagnosis of multiple
sclerosis would not be considered a mental
illness. If this condition caused the mental
illness then the disability would not fall under
the limitation, even if the physical condition was
not disabling. So, if the claimant was unable to
work due to depression resulting from multiple
sclerosis, but not from the physical limitations of
the multiple sclerosis, the mental illness
limitation could not be applied.
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Self-Reported Symptoms
Sample definition for “self-reported symptoms” :
“Self-Reported Symptoms” means the
manifestations of your condition which you tell
your physician, that are not verifiable using
tests, procedures or clinical examinations
standardly accepted in the practice of medicine.
Examples of self-reported symptoms include, but
are not limited to headaches, pain, fatigue,
stiffness, soreness, ringing in ears, dizziness,
numbness and loss of energy.
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Objective Evidence
Many LTD policies contain a provision stating that you
must provide the Insurance Company with “objective
evidence” of your condition or disability, or they do not
have to approve your claim. Look in the portion of the
policy titled “Proof” or “Proof of Loss” which explains
what a claimant must supply to the Insurance Company.
Sample Language: The following items, supplied at Your
expense, must be a part of Your proof of loss. Failure to
do so may delay, suspend or terminate Your benefits:
(and then listed as one of the “items” you are required
to submit would be the following) -Objective medical findings which support Your
Disability. Objective medical findings include but are
not limited to tests, procedures, or clinical
examinations commonly accepted in the
practice of medicine, for Your disabling condition(s).
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What evidence do I have?
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ALL Doctors’ records
Attending Physician Statements
Job description
Performance reviews
Personal Statement
Journal
Careful of social medial
Statements from supervisor/co-worker/subordinates,
caretaker, family and friends
Social security award
Independent medical examination
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LTD Insurers Can Obtain
Examinations
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DO NOT GO ALONE!
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Bring records with you and give them to
the doctor they pick.
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Get copy of report from insurer.
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How do I communicate with the
insurer?
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NEVER, NEVER, NEVER talk to anyone
from the insurance company on the phone
Send everything in writing, by certified
mail
Keep a journal
Beware of surveillance
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WHY WAS MY CLAIM
DENIED?
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ERISA
100 legitimate claims
70 appeals
30 lawsuits
10 lose
10 settle
10 win
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THE LAW OF ERISA APPEALS
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There are two critical things to know
about ERISA appeals
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The insured is entitled to a copy of the claim file –
sometimes called the administrative record – before
the appeal is decided
The insurer or plan may be entitled to discretion in
deciding the appeal
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WHAT IS THE CLAIM FILE AND
HOW DO I GET IT?
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The claim file consists of any document, record or other
information that was relied upon in making the benefit
decision, was submitted, considered or generated in the
course of making the benefit decision, or is a statement
of policy or guidance with respect to the plan concerning
the denied treatment (29 C.F.R. Section 2560.5031(m)(8))
The insured is entitled, upon request and free of charge,
a copy of the claim file (29 C.F.R. Section 2560.5031(h)(2)(iii))
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PLAN DISCRETION:
THE FOX GUARDING THE HEN HOUSE
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Many plans/policies provide that the entity deciding whether
to pay claims has the “discretionary authority” to construe
and interpret the Plan and determine eligibility for benefits
This means that the court will give deference to the decision
of the Plan or insurer – the decision DOES NOT HAVE TO BE
RIGHT, IT ONLY HAS TO BE REASONABLE
BUT when the same entity is deciding whether to pay claims,
and is paying approved claims, the Supreme Court says there
is an “inherent” or “structural” conflict (Metropolitan Life Ins. Co. v.
Glenn, 128 S.Ct. 2343 (2008))
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The fox guarding the hen house (continued)
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A "structural" conflict of interest introduces an element of
skepticism into what would otherwise be deferential judicial
review.
The degree of skepticism depends on the extent of the
conflict. The types of evidence tending to show the influence
of a conflict include:
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inconsistent or insufficient reasons for the denial
determining a material fact without supporting evidence
failing to follow plan procedures
failing to provide a full and fair review of the denial
acting as an adversary bent on denying the claim
The more evidence of conflict, the less deference afforded to
the administrator, and the more "skeptical" the review
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WRITING THE APPEAL
LETTER
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This letter is submitted in support of Jennifer’s appeal of the
denial of disability benefits. We will explain the history of
Jennifer’s disease and treatment. We trust that, after reading
this letter, which carefully documents Jennifer’s entitlement to
benefits, you will approve Jennifer’s request.
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Summarize the prior letters and documents
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Point out the inconsistencies
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Point out the irregularities
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Point out the omissions
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Enclose any new documents
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Conclude with specific request
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WHAT TO DO IF THE APPEAL
IS DENIED. . .
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Second Level Appeal
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Department of Insurance
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Department of Management Healthcare
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Litigation
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Multiple Sclerosis
Applying Through Your Employer’s
Long Term Disability Benefits
When Your MS Progresses
Lisa S. Kantor, Esq.
Kantor & Kantor
Attorneys at Law
(877) 783-8686
www.KantorLaw.net
LKantor@KantorLaw.net