With the adoption of the 2018 amendments to the ERISA disability claims regulations, it is now the law that ERISA disability plan administrators must provide claimants with copies of any new evidence generated after the submission of an appeal of the denial of long term disability benefits and a reasonable opportunity to respond prior to issuing a final denial. Usually, that new evidence takes the form of a file review by a non-examining doctor (or doctors) and possibly also an opinion by a vocational expert. Significantly, if you receive such evidence, it means the disability plan administrator will deny your appeal, absent some compelling new evidence or argument.

The requirement that disability plan administrators share post-appeal evidence with claimants was a welcome change for the lawyers representing disability claimants, who, for decades, have complained of a lack of transparency in the appeal process. However, receiving such evidence can be rattling for disability claimants, particularly those unrepresented by counsel, who are suddenly confronted with an intimidating report by a doctor (or doctors) and given as little as two weeks to respond.

Facing the forgoing scenario, what should a claimant do? This article will offer some strategies and tips for how to effectively respond to post-appeal evidence.

1. Request Extra Time to Respond to the Appeal

The first step anyone should take after receiving post-appeal evidence is to request an extension of the deadline to respond. The ERISA claims regulations permit a disability plan administrator to “toll” the deadline to render a decision on appeal “due to a claimant’s failure to submit information necessary to decide a claim.” 29 C.F.R. § 2560.503-1(i)(4). While an ERISA plan administrator is not required to extend the deadline to respond to additional evidence, most plan administrators will agree to an extension, particularly if the claimant cites extenuating circumstances. An extension will afford you the breathing room you need to effectively respond to the new evidence.

Related Article: How Can I Tell If My Benefit Plan Is Governed by ERISA?

2. Ask Your Doctor to Respond

After you have requested an extension of the response deadline, you should send the new evidence to your doctors and request that they respond. Ideally, your doctors would write a letter of rebuttal. However, treating doctors are busy and do not always have time to sit down and draft a letter from scratch. To make things easier for them, consider including a cover letter with the report and asking the doctor to check whether they “agree” or “disagree” with the reviewing doctor’s conclusions and space for them to explain why. Alternatively, you can schedule a call with the treating doctor and offer to prepare a summary of the call for his or her signature. A final option is to schedule an appointment with the doctor and ask him or her to address the report in the body of his or her office visit note.

3. Request Your LTD Claim File

If you haven’t already done so, it’s a good idea to request your claim file from the disability plan administrator to determine what evidence the insurer, and its vendors, relied upon in making their decision. The ERISA claims regulations entitle claimants to “receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.” 29 C.F.R. § 2560.503-1(g)(1)(vii)(D); see also 29 C.F.R. § 2560.503-1(m)(8)(defining “relevant”). You may discover that the claim file contains incomplete medical records, or that it contains some other evidence that can be helpful or hurtful to your case. The post-appeal review period is a valuable, and in many cases, final opportunity to supplement the record prior to litigation.

4. Consider Getting Additional Testing

Oftentimes, doctors reviewing medical records for insurance companies complain of a lack of “objective evidence” or “medical support” for restrictions and limitations. Don’t feel constrained by the existing medical and vocational evidence in the claim file. Depending on the circumstances, you might consider undergoing a functional capacity evaluation, neuropsychological evaluation, or vocational assessment. You might also consider making an appointment with a specialist to get a second opinion. We strongly advise claimants to talk to an attorney to determine what additional evidence is needed to perfect the claim. If you provide the disability plan administrator with the objective and/or medical evidence they claim is lacking and they nonetheless deny your claim, that conduct is strong evidence of arbitrary and capricious decision-making.

5. Build Your LTC Claim Record

Thanks to the quirks of ERISA civil procedure, most disability claimants will not have an opportunity to supplement the claim file in litigation. Therefore, it is of utmost importance that the claim file is as complete and robust as possible. The post-appeal review period may be your last opportunity to supplement the record, so make use of it. Examples of some evidence you might consider submitting if you have not done so already include:

  • Job description;
  • Resume;
  • Witness statements, especially from former supervisors and colleagues;
  • Social Security decision, exhibit file, hearing audio, and certified transcript of hearing audio;
  • Personal statement or “day in the life” video by claimant explaining why you are disabled and responding to any adverse evidence in the claim file, such as video surveillance footage or social media surveillance;
  • Symptom diary; and
  • Photos depicting joint deformities, scoliosis, or other visual evidence of disability that may not be captured by medical records alone.

6. Talk to a Benefits Attorney

Ideally, you hired an attorney to assist you in applying for disability benefits and/or to appeal the denial of your disability benefits. However, sometimes the need for an attorney doesn’t become apparent until you receive the post-appeal evidence from their disability insurer. It’s never too late to consult an attorney regarding your rights. An attorney who specializes in LTD or ERISA claims can help you to identify what additional evidence or argument is needed to perfect your appeal. Depending on the circumstances, the attorney may be able to offer a contingency, hourly, or flat fee payment model to suit your needs. If you have appealed the denial of your LTD benefits and are asked to respond to new evidence generated after the appeal, contact the attorneys at DeBofsky Law to discuss your options.

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