Losing the ability to work due to injury or illness is hard enough, without having to fight with an insurance company over whether you are entitled to disability benefits. At DeBofsky Law, our attorneys are skilled at recognizing the traps and pitfalls common to disability insurance claims. We have successfully handled thousands of pre-suit appeals on behalf of disability claimants, and have obtained justice for hundreds of clients in court. Whether you are just thinking about applying for disability, or your disability benefits have been denied or terminated, we can assist to ensure you receive the benefits you deserve.
Types of Disability Insurance
There are many types of disability insurance, each with its own considerations. An experienced benefits attorney can help you understand the different types of coverage for which you may be eligible and how they interact.
Short Term Disability Insurance:
Short term disability insurance is typically offered through an employer or may be purchased via an individual policy of disability insurance. Short term disability benefits typically last three to six months and are intended to provide income replacement during periods of temporary disability or while satisfying the elimination period for long term disability benefits.
Long Term Disability Insurance:
Long term disability insurance is also typically offered through an employer and provides income replacement (usually between 50-70% of pre-disability income) following an elimination period of three to six months until you reach retirement age, provided you remain continuously disabled and no policy exclusions or limitations apply.
Individual Disability Insurance:
Individual disability insurance is typically purchased from an insurance broker and is independent from any benefits you may have through your employer. Like long-term disability insurance, individual disability insurance provides income replacement, usually in an amount fixed at the time of purchase or during subsequent policy renewals, until you reach retirement age, provided all other policy criteria is met.
Social Security Disability Insurance:
Social Security disability insurance (or SSDI) is a governmental disability benefit available to people who have paid sufficient premiums in the form of FICA taxes. The criteria for qualifying for Social Security disability insurance is usually more stringent than the other types of insurance discussed above. (DeBofsky Law does not handle Social Security disability claims.)
When Should You Hire a Disability Attorney?
It is never too soon in the process to engage the services of an experienced benefits attorney, whether you are just thinking of submitting a disability claim or if your benefits have been denied. Most group disability benefit plans are subject to the federal ERISA statute, a law that combines aspects of contract, trust, and administrative law into a complex regulatory framework. The ERISA statute has some of the strictest deadlines in employment law, and failure to adhere to those deadlines could result in dismissal of a later lawsuit. Thus, as soon as you decide to submit a disability claim, or as soon as your claim is denied, it is prudent to contact an experienced disability benefits lawyer to discuss your claim and your options.
Know Your Rights
You are potentially eligible for many different kinds of disability compensation, including:
- Retroactive (past-due) benefits
- Future benefits
- Interest paid on past-due benefits
- Attorney’s fees
Work with attorneys who know how to get you everything you deserve.
Does This Apply to You?
Contact DeBofsky Law for an attorney consultation. We will work with you to figure out your problem, and how we can help.
What Are the Benefits of Hiring a Disability Lawyer?
Understanding Your Benefits:
An experienced disability insurance lawyer can counsel you as to the benefits provided under your disability insurance plan or policy. Sometimes, just obtaining the plan document can be a challenge. And, once received, it can sometimes be hard to know whether the plan document (or documents) are complete, current, and not invalidated by state law. Moreover, all disability insurance policies contain exclusions or limitations. An experienced disability insurance lawyer can help you to obtain the relevant policy or plan documents and counsel you as to the meaning of the plan terms to ensure your rights are protected.
Proving Your Claim:
An experienced benefits attorney can also help to ensure your disability claim has sufficient medical support. A diagnosis, alone, is usually not sufficient to establish disability. Rather, you must have the support of a treating doctor. Likewise, a statement from your doctor that you are “unable to work” is usually not sufficient to receive disability benefits. Instead, your doctor must identify restrictions and limitations that would preclude you from performing the material duties of your job (e.g., limited tolerance for sitting, standing, or walking; manipulative limitations; difficulty interacting with the public). Those restrictions and limitations must be medically supported and consistent with the evidence as a whole. A disability insurance lawyer can help you identify what additional testing, if any, is needed to bolster your doctor’s opinion and substantiate your disability claim.
Identifying Vocational Arguments:
In addition to the medical evidence, vocational evidence is often critical to proving your disability claim. A favorite insurance company tactic is to misclassify or over-generalize occupations into a less physically or mentally demanding role. An experienced disability lawyer can prevent that from happening by documenting the material duties of your occupation as performed both by you and in the local and national economy. But proving you are unable to perform your former occupation is only half the battle. Many group disability plans utilize a two-pronged definition of disability that provides two years of disability benefits if you are unable to perform the material duties of your “own” or “regular” occupation, followed by a more general “any occupation” standard of disability. An experienced disability lawyer can help you understand the difference between those two standards and devise a strategy so as to hopefully avoid an interruption of benefits at the two-year mark.
Transitioning From Work to Disability:
As you transition from work onto disability, you will likely have many questions. For instance, you may not be sure whether you should resign, retire, or simply remain silent about your intentions to return to work. Additionally, you may have questions about the impact of that decision on other benefits, such as your health insurance, life insurance, and pension benefits. You may wonder if your employer can terminate you while you are on a disability leave. You may also wonder whether you should accept a severance offer from your employer, or apply for unemployment benefits. An experienced disability lawyer can counsel you through these and other questions to ensure you maximize your benefits while avoiding later legal troubles.
How to Appeal After a Disability Denial?
If your disability claim is denied, you may be tempted to appeal as quickly as possible so as to minimize the interruption to your income, but that would be a mistake. Most disability insurers allow claimants up to six months to appeal a denial of benefits. While it may not be practical to use the entirety of that time, it is in your interest to take a few weeks or months to compile a compelling appeal submission. Better yet, it is prudent to hire an experienced disability lawyer to handle the appeal for you.
Most of the time, disability insurers are unlikely to overturn a denial of disability benefits absent new evidence or argument. Your first step in appealing a denial of disability benefits should be to request a copy of your claim file and disability plan or policy. The claim file will give you an idea as to the reasons for the denial and how to perfect your appeal. Common reasons for the denial of benefits include:
Incomplete Medical Records:
You may think the insurance company has your complete medical records, but oftentimes you would be wrong. Most insurance companies will only request records from the alleged date of disability onwards, except in the case of suspected pre-existing conditions. If you suffer from chronic health conditions, you may want to submit earlier medical records to show the progression of your impairment. Similarly, the insurer may have requested records from your doctor but not your hospital, or vice versa. Finally, if you previously received disability benefits, don’t assume that the records from that disability claim will be merged with the current claim without a written request by you.
Adverse Opinion Evidence:
Very frequently, disability claims are denied based on the report of a non-examining, file-reviewing nurse or doctor employed by the insurance company. Those file reviews often ignore subjective complaints of pain and fatigue and the opinions of the treating physician. The claim file may also contain adverse opinion evidence from your own doctor. In either case, it is important to schedule a meeting with your doctor to discuss the report in question and, if your doctor is agreeable, ask him or her to write a letter of rebuttal or explanation. An experienced disability insurance lawyer can assist you in this process, or even talk to your doctor for you, to ensure the necessary points are addressed.
Improper Vocational Analysis:
Just as the claim file may contain incomplete or adverse medical evidence, it can also contain adverse vocational evidence. Usually, this evidence takes the form of an “occupational analysis” or “transferable skills analysis” performed by a vocational expert for the insurance company. Often, those reports may be based on faulty assumptions, such as an inaccurate or incomplete job description, an incorrect understanding of your past work and transferable skills, or an improper residual functional capacity evaluation. Whatever the issue, it is important to remember that in the case of disability, medical evidence is only half of the equation: the occupational or transferable skills analysis is equally important and requires your attention. Unfortunately, vocational analysis is a specialized undertaking that often requires consulting an expert. A disability insurance lawyer can advise you whether an expert report is necessary, or whether the submission of additional vocational evidence and argument will suffice to remedy the problem.
Besides the foregoing points, there are innumerable other kinds of errors and omissions a disability insurance company can commit in the course of deciding a disability claim, as well as additional types of evidence that may be of value. For instance, if you have been awarded Social Security disability benefits, you may want to obtain and submit a copy of your Social Security disability file, provided it supports disability due to a non-limited condition. Likewise, if your disability is primarily subjective in nature, you may want to keep a symptom diary to submit in support of your appeal. A disability insurance lawyer can counsel you as to what additional evidence and argument is necessary to maximize your chances of success on appeal.
Contact a Disability Attorney in Chicago
If you are thinking of applying for disability benefits, or if your claim has been denied and you wish to appeal or litigate, the experienced attorneys at DeBofsky Law can assist. With over sixty years of combined legal experience, and nearly 100 published appellate decisions to our name, we pride ourselves on taking cases to judgment and nudging the case law in favor of claimants whenever possible. As our founding partner, Mark DeBofsky, likes to say, “We don’t just follow the law. We make the law.” We encourage you to contact us today regarding your disability insurance claim.
Some disability plans require plaintiffs to receive Social Security benefits within 24 months of initially qualifying for long-term disability benefits or no further benefits are payable. In this ruling, the court declined to dismiss the complaint due to a tardy SSDI approval, deeming such a denial to be arbitrary and capricious.
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