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If you purchased your disability policy through your employer the policy is most likely governed by the ERISA statute. The Employer Retirement Income Security Action (ERISA) of 1994 is Federal legislation that has given a “get of jail free card” to disability insurance companies.
In most ERISA governed claims, courts will only overturn the insurance company’s decision if you can prove that denial was “arbitrary and capricious.” That’s the highest burden of proof in a civil case and it allows insurance companies to “play hardball” on claims.
The most common reasons that long term disability carriers wrongfully deny or terminate benefits are:
1. Insufficient medical proof;
2. Reliance on functional capacity evaluations or independent medical evaluations;
3. Medical reviews by a nurse;
4. Peer reviews that rely on “independent physicians”; and
5. Transferable skills analysis.
1. Insufficient medical proof
Many long term disability policies require that you send proof that’s acceptable to the carrier for their review and consideration. Unfortunately, many long term disability carriers play ping pong and no matter how much you send them, it’s never enough.
2. Functional capacity evaluations or independent medical evaluations
Your policy probably provides that the carrier is entitled to an independent medical evaluation. If you are scheduled for an IME, you should immediately retain the services of an attorney to represent you to ensure that you are protected during the independent medical evaluation.
Some long term disability carriers will also schedule a functional capacity evaluation which is an evaluation to determine your physical capabilities. However, not all policies provide that the carrier has a right to a functional capacity evaluation!
Unfortunately, FCE providers are also in the pocket of the long term disability carriers and will routinely opine that you’re capable of engaging in at least sedentary work so the long term disability carrier can terminate your benefits.
3. Medical review by a nurse
Long term disability carriers have nurses on staff who will summarize your medical records and mysteriously, conclude that the medical records don’t support your diagnosis, disability or inability to return to your own occupation or that of any occupation.
4. Peer review by physicians
It’s tough for a physician these days. Many physicians have supplemented their income by doing “paper reviews.” They’re hired by a peer review company for the purposes of reviewing medical records, which have been summarized by the nurse and determining (a) whether there is any objective basis of your diagnosis, (b) any objective basis for the restrictions and limitations assigned by your physician, and © give their opinion on your ability to work.
It’s rare to find a peer review physician who will give an honest opinion because, quite frankly, their income is dependent on giving the peer review company and often the long term disability carrier the ammunition to deny your claim for benefits.
5. Transferable skills analysis
Long term disability carriers also have in their employ vocational evaluators. These evaluators will often review the job description of your occupation and will either misclassify that application or opine that you’ve learned skills in that occupation that you could take to other occupations. That is called a transferable skills analysis.
Many times transferable skills analysis provide jobs that you can’t do because of non-exertional problems, such as pain or side effects of medication. Worse yet, transferable skills analysis will list jobs that you might be able to do, but simply don’t exist.
What you should do immediately
If you claim for long term disability benefits has been denied, contact long term disability attorney, Nancy Cavey, who represents clients throughout the United States. She’ll review your claim, prepare your appeal and, if necessary, file suit and represent you in Federal court.
She has litigated disability cases against every major disability insurance company in the United States and knows first hand the methods long term disability carriers will use to wrongfully deny or terminate legitimate claims.
Call today at 727-477-3263 for free initial consultation.