Need help with LTD

[ladyc4]

I suggest you talk to a Worker comp Attorney-many will give an initial brief consultation. I have to tell you that tying a Worker's Comp claim to stress is very difficult-but if you can file a claim, your company will start sending you to doctors who's job it will be to protect your employer...but sometimes the reports they generate will help you in an LTD and or SSD claim. I really think, even though your insurance is telling you you don't need a lawyer yet, that you DO need a lawyer.
In the meantime-what is your status? Are you drawing some kind of sick pay? Does your employer, your medical, or short-term disability have any plan to provide you with Voc Rehab,if your doctor says that just sending you back to your regular job is a bad idea?

 

[beaches]

My short term disability has run out and I've been eligible for LTD insurance since October but they have denied me twice. So now I begin the process again.
I was not able to return to my old job in October because I was literally crippled but I wasn't diagnosed yet. I was diagnosed early Dec and I cannot work at any job at this time because of this illness. I don't think anyone would employee someone who needs to rest for hours in between 5 minute chores. I cannot hold my arms up without excruciating pain and the only time I have some relief is when I am on a heating pad with my head propped up.

 

[ladyc4]

These are the things that need to be documented for your claim, which is why I'm suggesting functional capacity testing and/or Voc Rehab evaluation. The letters from those assisting you in managing your daily life are good,but you need statements from professional people regarding your difficulties. And I do encouage you to go ahead and start proceedings for Social Security disability and to investigate the possibility of Worker Comp.
And I've been meaning to inquire about the person in your dr's office that made the statement regarding your ability to work-what are her professional qualifications to make that assessment? Can she support that with test results?

 

[beaches]

ladyC

The woman in my Doctor's office was nothing more than a clerical person who took it upon herself to write this statement. The Doctor knew nothing about it and she just assumed he was treating me for post knee surgery.
I have spoken with him and demanded that he write a letter stating this and detailing my condition while under his treatment which he is in the process of doing.

 

[ladyc4]

Well that letter from your dr may be a pretty crucial piece of evidence, the insurance co may figure that this is your dr's opinion,they would have no way of knowing that it was the result of an erroneous assumption by a clerical employee. Again, your doctor(s) have to tell HOW your condition prevents you from working. Usually there are forms that they send for the doctor to fill out, that address specific areas that are generally applicable to employment situations-your capacity for standing/sitting,lifting, carrying, walking,repetitive motion, your endurance...and also about your ability to interact with other employees and supervision in a reasonably positive manner.

 

[INAZ]

CIAA wrote: The Federal courts have held that SSD approval means little or nothing in an ERISA disability claims dispute; that in many cases the definitions of disability are not the same and that in any event a persons' SSD approval does not, in itself, provide a current qualified medical opinion that can be used as rebuttel evidence against the insurance company's doctor(s).

I hate to disagree with you because I don't study law or court cases, but in at least one case, the Seventh Circuit decided that where a company encourages a client to apply for SSD that: "This case is within the doctrine of “judicial estoppel –that if a party wins a suit on one ground, it can’t turn around and in further litigation with the same opponent repudiate the ground in order to win a further victory.”

In fact, on other boards discussing the LTD issue, other attorneys have posted that SSD is the barometer for approval of LTD because their claims must be reviewed by physicians and the standard is much higher than most LTD plans.

Can anyone clarify for me the burden of proof of an ERISA LTD situation vs. a non - ERISA LTD plan. I am covered under a state employees' plan (non - ERISA). If denied is it easier or more difficult to win an appeal and a subsequent suit against a state agency administered by a private insurer? Thanks.

 

[ladyc4]

INAZ-
thank you for posting information about actual precedents being set, I was mostly going by the law of common sense. I'm not sure what point CIAA was trying to get across...

Again, what has to be established is not simply that claimant has this disease,syndrome or injury and can't work because of that disease,etc. It has to be explained WHY the condition keeps the claimant from working,at their regular job or any other work that they could reasonably do within their range of skills and training, or re-trained for within reason.

 

[CIAA]

Inaz,

Its been a while since I reviewed the cases, but as I recall, in the case you refer to the insurance company required that the claimant file for SSD (because they get to reduce their benefit by the SSD amount), they required the claimant to appeal the SSD denial and then finally encouraged and assisted the claimant in suing SSD over the final denial. Then, after the claimant won SSD benefits before an Administrative Law Judge, the insurance company denied the disability claim on the basis that the insured was not disabled. As I further recall the medical facts were persuasive for disability and the court was not at all happy with the insurance company's handling of the entire matter and considered that their actions equated them as being a benefiting party to the suit and therefore could not then turn around and disagree with the findings. Whether or not the seventh circuit will follow the same logic where the insurance company does not ingrain themselves in the SSD issue is something to be watched.

I must admit that an SSD award can be of some value in ERISA cases, but the history I have read indicates that the other circuits have either taken the position that the SSD consideration is not sufficiently binding or that it is just one of many facts to be considered, with the latter view being expressed by the 3rd Circuit (which would include New Jersey) in Marx v Met Life (2002), and in this case the court ruled against Marx in spite of the SSD award.

My point was that the insurance company is not going to "look silly" denying an ERISA disability claim when the claimant has been approved for SSD....after all, they've won to many of them to looksilly or even worry about it. As I pointed out, perhaps the most important thing about SSD award is not the award itself but the physicians opinion and the medical evidence on which it is based.

Finally, in regard to the burden of Private v ERISA (or governmental agency administered plans), I believe that it is fair to say that in Private plans the insurance company has to prove that your claim for benefits is unreasonable and in ERISA plans the claimant has to prove that the insurance company's denial is unreasonable.

We are not attorneys and do not give legal advice or legal opinions. Any opinions or comments in our response should not be regarded as a substitute for professional legal advice.

 

[INAZ]

Thanks for investing the time and doing the research to reply. Your thoughtful insight adds much to the board.

 

[ladyc4]

Agreed it can be difficult to be granted LTD,SSD or both.
But the important thing that a lot of people applying for either or both miss, is that it's not enough for a doctor to say "So-and-so has such and such medical condition and can't work due to that condition". The doctor has to explain WHY the condition keeps the person from working.If more than one doctor, or other experts such as vocational rehab counselors give that opinion,that is even better. I think beaches is still at this step,and the problem lies with insufficient evidence and documentation, rather than the inherent flaws and the "nightmare of ERISA claims." I'm not denying that an ERISA claim can be a pain in the *ss, but in this particular instance I think it's an under-supply of evidence rather than the "system"that's creating the problem.

 

[beaches]

Thanks for all the input. I have received further documentation from all doctors involved with my cases stating why I cannot function at my old job or any job for the matter. By Monday I hope to send all this paperwork in to start this appeal process once again. Will keep you posted of my progress but it does take a long time.