By Evan Zagoria
Don’t let your long term disability claim go unpaid by your employer or insurer. Fight back with information and the help of a professional specializing in collecting the benefits you may be entitled to. Learn the facts!
Statistics show that people are more likely to become disabled prior to age 65 than die. If you become disabled, you still have to pay for your mortgage and automobile expenses, buy groceries, pay medical expenses, etc. Social Security disability benefits will typically replace 25-30% of your income, perhaps less, particularly at higher income levels. However, Social Security disability benefits may not be payable if you are disabled from your job but not from any work. Long Term Disability Benefits (LTD) can be an important supplement to Social Security Disability benefits or provide benefits not otherwise available.
LTD coverage or plans can be purchased individually, through a private policy, or are usually obtained as an employee benefit through your employer. If provided as a benefit by your employer, these claims are governed by a federal law, The Employee Retirement Income Security Act, also known as ERISA. If the employer is a governmental entity or a religious organization, the plan could be exempt from ERISA.
These disability policies come in many forms. They can pay 50% of salary, 60%, but usually no more than 70%. The definition of disability can be for your own occupation or any occupation. Depending on how these plans are purchased, the benefits can be taxable or non-taxable. Employer provided LTD policies will almost always be subject to reduction or offset for Social Security disability or other forms of disability income that your receive or qualify for. These policies can exclude payment for pre-existing illnesses and limit payment for mental-nervous disorders, substance abuse disorders, and self-reported disabilities. There are limited time frames to file applications and appeals and statutes of limitation to file lawsuits, so it is important to act promptly and apply for benefits. Also, plans may have different waiting periods where you must be disabled for a certain number of days or months before benefits become payable.
ERISA accords significant advantages to the employer or insurer. These cases are heard in Federal Court. You are not entitled to a jury trial. It is CRITICAL to get experienced legal help early in the process, before your administrative appeals are exhausted, not after.
The employers and disability carriers have deeper pockets to investigate and adjudicate these claims. They can require you to be interviewed in your own home by their employees, they can make you attend medical exams by their doctors or attend a functional capacities evaluation (FCE). They can have you followed by an investigator taking videotapes of your activities and interview your neighbors. They may conduct Internet searches to see if you are active in groups, write articles, have sued other people before, are in a bowling league, or are involved in other activities that they may claim shows that your are not disabled. These activities are designed to provide grounds for denying claims or to disregard otherwise supportive medical records.
The only weapon you have to fight back is a skilled disability lawyer. An experienced attorney can obtain detailed medical depositions and opinions from your doctors and others, not just routine medical records, to neutralize and outweigh the plan’s evidence. It is very important to obtain skilled representation before you have exhausted your administrative appeals. The ‘file’ or ‘record’ in an ERISA appeal is usually closed as of the final administrative appeal. You are usually precluded from submitting new medical evidence in Federal Court. Even the most medically sophisticated claimants will have difficulty knowing what proof of disability is required, what their medical records say, how to neutralize LTD doctors, and best create the record for your case.
These cases are usually handled on a contingency fee basis so there is no legal fee charged unless you recover benefits. However, a fee contract can be uniquely structured for the specific needs of every client, incorporating retainers, hourly fees, or special contingent fee arrangements that fit your situation.
About the Author: Evan Zagoria of Provizer & Phillips, P.C.,
; (800) 399-EVAN (3826) has spent his entire career of over 30 years handling social security and other disability matters. He is a former attorney for the Social Security Administration, and a member of the Board of N.O.S.S.C.R.