Elkind & Shea

Frequently Asked Questions - Disability Benfits

What is the definition of "disability"?

“Disability” is defined in Webster’s New World College Dictionary (4th ed. 2002) as: (1) a disabled condition; (2) that which disables, as an illness, injury, or physical handicap; (3) a legal disqualification or incapacity; (4) something that restricts; limitation; disadvantage.

Now, look at the definition of “disability” in your policy. You will immediately notice that hardly a single word matches the dictionary definition. One insurer had defined disability as:
you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury, and you have a 20% or more loss in your indexed monthly earnings due to that sickness or injury. The reason for such specific and deliberate language is that the insurer has purposefully created an artificial definition of the word “disability.” The reason for this is simple. Insurers need to set forth language which seems plausible to get people and employers to pay premiums for the policy yet remains legally restrictive enough so as to prevent payment of many claims. This is ingenious work and is obviously the handiwork of many trained lawyers. This language itself should cause any claimant concern and make anyone realize that they have entered a system which requires the assistance of a skilled disability benefits attorney.

What is ERISA and what effect does it have on my claim?

Most people obtain long term disability coverage as part of an employee benefits plan. Most employee benefits are regulated under a complex government statute called the Employee Retirement Income Security Act of 1974 or ERISA. Look it up sometime, it is huge and unwieldy. This is why few attorneys engage in an ERISA-based law practice. Claimant’s attorneys who regularly engage in ERISA practice have their own definition: “Everything Rotten Invented Since Adam.”

ERISA sets forth a series of regulations which are rarely enforced by the Department of Labor and which the insurance industry attempts to take full advantage. What is most troubling is the standard of review many courts review insurer claims denials: abuse of discretion which is also termed arbitrary and capricious review. Most people are familiar with the civil jury standard of preponderance of the evidence. This means one party is more persuasive than the other party. In the case of arbitrary and capricious review of claims decisions, a claimant must prove that he or she is really right and the insurer is really wrong. This is a very difficult burden and should not be taken lightly. Unless a claimant is able to produce sufficient evidence which is made part of the claims file at the time of review, this burden will not be met and the claimant will forever lose his or her much needed disability benefits. Further, a claimant needs to be able to identify the particular instances of bad faith conduct by the insurer in his/her case as well as has been identified in past case decisions. Since a claimant is not on an even playing field with an insurer, the only way to counteract this distinct disadvantage is to acquire the assistance of a skilled disability benefits attorney. As the law of ERISA is evolving on a daily basis, you need to acquire an attorney who is regularly engaged in this practice. A person who does these cases on occasion will not have sufficient expertise.

Can my employer help me get my disability?

It can’t and, to the surprise of most claimant’s WON’T. Why? If the insurer bought an insurance policy, then that policy will be administered by the insurer or by a different third party administrator. In either case, most employers wash their hands of your disability case once your claim is made. Even worse, you will find some human resource managers who will try to undermine your claim by providing incorrect information about your job activities or about your prior work performance. When the employer is self-insured, you can expect substantial resistance to your application as they benefits will be paid directly from their assets. It is no surprise that the employer would rather keep itself in the “black” by not giving up any of its “green.”

The awful truth is that once you are no longer useful to a company, you tend to become disposable and are forgotten. The way to keep this phenomenon is to take measures to prepare your case for disability in advance. Our firm has helped many clients receive their benefits upon their initial application as well as after receiving claims denials or terminations.

Our firm’s experience is that they are far more “Catberts” than “Drew Careys” when it comes to human resources managers. It is important to take steps to prevent an evil HR person from hurting your chances to receive disability benefits.

Does my doctor know I am disabled?

It does not matter whether your doctor knows you are disabled. The fact that a doctor says your are disabled is not absolute evidence of your disability. The actual findings in your reports including symptoms, tests, diagnoses, and functional restrictions are far more important than a simple pronouncement of disability. Face it, your doctor does not have the policy definition of disability and cannot make a legal determination. This is not the physician’s role. is But, your treatment providers can provide a wealth of information to help support your claim for disability.

Even worse, the Supreme Court has ruled that an insurer does not have to believe the opinion of your treating physician(s). Does this seem fair? We do not think so, but we have other very effective ways of assisting our clients in proving their disability despite what the “Supremes” say.

In addition, the forms used by many insurers are deliberately deceptive. They are purposefully designed to fool your own doctors to give findings which will be utilized against you. Our firm has given several seminar presentations concerning the use of these forms (one such presentation which resulted in Scott Elkind being forever banned from an insurer-friendly conference) and knows all the tricks the insurers have up their sleeves.

Are there "better" disability insurance companies?

Not Really. Just because UnumProvident gets all the bad publicity because it is the largest disability insurer does not make it the worse company for paying claims. There are others which can be worse. The reality is that there are many variables at play when you apply for benefits including the claims representative reviewing the case, any internal guidelines issued concerning your condition or profile, the financial condition of the company, among many others. So, whether your policy is with Prudential, Fortis, Reliance Standard, The Hartford (CNA), MassMutual, ING, SunLife Financial, Liberty Life, GE Financial, High Mark, MONY, Aetna, Cigna, New York Life, MetLife, Paul Revere. Northwestern Mutual or any of the other disability insurers, you should always be careful since their bottom line could dictate your ability to receive benefits. In fact, some of the harshest companies are your own employer when they are self-insured. In these cases, the money comes out of their own pocket and many choose to fight very hard to keep their money rather than pay it to disabled claimants.

Are there certain medical conditions which are more disabling than others?

Diagnosis does not equal disability. It is the severity of a condition which causes a person to become disabled. For example, a small skin cancer lesion is very treatable and, in most cases, will not result in disability. A similarly small brain cancer lesion in a sensitive area can be very disabling. Similarly, some people experience headaches with only minor impairment while others suffer from excruciating cluster or migraine headaches which completely impair them. For this reason, it is crucially important to demonstrate how a particular illness or injury affects the specific claimant. Generalities of diagnosis will not be effective in proving disability as there are plenty of people with the same illness who are still working. The important factor which must be established is proving the limitations caused to you by your particular condition and conveying that information effectively to the insurer or a court.

What is more important is that your medical documentation be complete. For this reason, you should always know the complete content of your medical records before they are submitted to an insurer. The last thing any claimant needs when applying for benefits it surprises (usually bad ones) from their own treatment providers.

There are certain conditions which will raise insurance company’s suspicions. Many of these conditions involve what insurance companies term “self-reported” symptoms such as pain, fatigue and dizziness. Although everyone has experienced these symptoms at some point in their life, these symptoms themselves are not capable of accurate measurement by a scientific instrument. Such conditions which cause the primary symptoms of pain, fatigue and dizziness include connective tissue disorders (i.e. lupus), migraine or cluster headaches, vestibular disorders, fibromyalgia, chronic fatigue syndrome, Hepatitis C and other blood disorders, cardiac conditions, chronic pain syndromes, post-cancer treatment syndromes, musculoskeletal disorders among many others.

What amount of benefits will I receive if approved?

Although your insurance policy will tell you the percentage of your salary that you will receive if approved for benefits, you will need to check the “fine print.” If you are a worker who receives overtime or commissions, you many be limited only to your base salary for the purpose of monthly benefit calculation.

Many policies will contain an offset provision which will reduce your benefits by other benefits paid to you including Social Security disability (not only to you, but also to your dependents…how unfair), other government disability benefits (railroad workers, etc.), workers’ compensation, among others. As you will notice, you are required to apply for Social Security Disability benefits in order to force a reduction of your benefits in order to benefits an insurer. If you were not a high wage earner, the offset may be so drastic that you could receive little in benefits following offset reduction. A small benefit amount actually makes it easier for insurers to deny your claim as insurers know you will have little or no money to acquire a skilled counsel to fight them.

Are my disability benefits subject to taxation?

If you paid for your policy with pretax dollars, then your benefits will be subject to taxation. If the benefits were paid with after tax dollars, then the benefits will be not be taxable. Most people receive their benefits as part of an employee benefits package and receive group rates. Whether paid in part of whole by the employer, these benefits will be taxable. Social Security disability benefits are taxable income also though it may seem somewhat senseless. What the government giveth, the government taketh away.

Can I return to work?

Read you policy carefully concerning partial disability benefits. Once you exceed a low threshold, your benefits will be terminated and you can lose all rights to them. Be very careful when planning a return to work. Such planning should include consultation with both your attorney and physician prior to committing to a new work attempt.

What type of service does your firm offer?

Our firm is called “The Disability Benefits Law Firm” for a reason. We have the experience and skill to handle both your private, ERISA, and Social Security disability cases. There are very few law firms who possess the necessary skill in all these areas. Our firm has handled thousands of cases including hundreds of lawsuits and appeals in the federal courts. Due to this experience, we will do our best to win your case early on without necessitating the risks inherent in court proceedings. We have the skill to handle your case from beginning to end including: initial application, administrative appeal, federal court litigation, appeals court briefing. We have handled many benefit termination cases and have successfully prevented benefits terminations as well. In addition, our firm has handled many overpayment matters as well as settlement of long term disability claims.

What type of fees does our firm charge?

Our firm prides itself on offering flexible payment arrangements which include flat fees, contingency fees, and hourly fees. We have even created combination of these fees in order to make our services affordable for our clients. As each case is different, we discuss fees with the individual client, basing the fee structure on many factors including the basis of denial, the particular insurance company, the quality of evidence supporting the disability claim, among many others. We offer free consultations for new clients seeking our representation as we firmly believe that we should earn our fees from our work not just by making people come to appointments. More often than not, we will consult by telephone initially as our experience is that our clients have difficulty traveling and they appreciate speaking to us first instead without necessitating an long trip for a personal interview.

What mistakes should I avoid?

Below are listed seven deadly sins that claimants commit:
  1. Do Not Make Admissions of Abilities on the insurance company claim forms. The company will be very happy to use any reports of abilities to perform activities of daily living no matter how seemingly insignificant. They will make sure to send out investigators with video surveillance if you tell them that you are performing activities outside your home such as working out at a gym, jogging, bicycling, or gardening.
  2. Do Not Ever Forget that every time you go outside your home that you may be videotaped. Insurers especially appreciate when you perform yard work or go to big box stores and lift heavy items. Even better are those trips to the gym where they will videotape your entire workout. You may able to justify your activity by giving explanations, but remember the following: the videotape is not on when you are in pain the next day or cannot get out of bed. It only sees what is filmed and if you look good while performing even simple activities, it can and will be held against you. For this reason, do not lift any items above the weight or duration which are not recommended by your doctor. There are plenty of people working at stores who will be happy to assist you as tipping may constitute a desired source of income.If you believe you are being followed, call the police. It is not illegal for private investigators to follow you in public, but the police will question the investigator. This will put the individual on notice as to your knowledge of his/her activities and may prevent further investigatory activity. No matter what, you will feel better by letting them know you do not appreciate their presence.Investigators will call your treatment providers to verify the dates of your appointments and videotape you on your trip. If you have a scheduled appointment, go see your doctor, but do not make side trips until a couple of days later. Investigators will park outside your home for hours and wait for you. Their tendency is to leave after it becomes dark outside. If you need to pick up something, then do so in the later evening when the investigators “turn into pumpkins.”
  3. Failing to Coordinate Your Work Cessation Correctly. Your benefits are not payable after you stop working. Therefore, you need to be fully diagnosed and assessed before you apply for benefits. If you wait for your physicians to “figure out” the cause of your illness while you apply for benefits, the insurer may claim that you were not suffering from the diagnosed impairment prior to your ceasing work. Check your policy. Your benefits eligibility ends the day you cease working. Be careful and seek the advice of counsel in advance to make sure you do not fall prey to such policy provisions.
  4. Never Ever let investigators from the insurance company into your home. If you need to meet with them, then do so at a public place. The investigators will be happy to ask you questions about household items or photographs hoping you will admit to activities they can hold against you. The will record their perception of your home cleanliness, etc. Many times, claimants meet with these investigators without a witness. This is also foolish since the investigator’s report cannot be rebutted by an independent observer. Our clients only meet with investigators in our office. At times, I will record the sessions if the investigation turns unfriendly, its necessity is questionable, or if the investigator acts aggressively.
  5. Thinking the insurance company will assist you with any disability claim. Insurance companies will offer you assistance with your Social Security case. Do not let this happen. You are not required to use the services of their vendors. More often than not, they hire non-attorneys (also called “Claims Representatives) or poorly skilled attorneys to do this type of work. If they lose your Social Security case, they will use it against you. If you somehow win your case, they will try to offset your benefits. No matter what they will do little to develop the evidence in your case so as to prevent your from acquiring useful information which will assist you in your case against the insurer who referred the case to them. So, even if the company tell you the a Social Security representative will be provided for “free.” At best, you may only get what you paid for. At worst, you will not receive disability benefits of any kind.Some insurance companies will gather your medical documents. Others will not. All policies read that it is the claimant’s duty to submit evidence supporting disability. On the other hand, many companies will be more than willing to submit biased questionnaires to your treatment providers and employer to create adverse evidence to help support a denial of your benefits. Do not let this happen to you.Many insurance claims representatives will be more than happy to gain your confidence by stating that they are “there to help you” or “are on your side.” Remember who is paying their check. The check is not paid as easily to the employee if that money is being paid to you. Another trick commonly employed is the good/bad cop scenario where the claims representative and claims manager take turns being nice or nasty to you in order to soften you up, acquire information, keep your confidence, and, ultimately, deny your claim.

    Our firm knows all the tricks that the insurance companies use and will work hard to make sure that you will not be taken in by their bad faith conduct.

  6. Not hiring a skilled disability benefits attorney. You can never get counsel too early. Many of our happiest clients are those for whom we have prepared disability claims for and which were approved with comparatively little trouble. Threatening an insurer that you will get an attorney only tells them that you do not want to do so. Being cheap with your claim only reduces your chances of getting the benefits you deserve. A small investment in the efforts of a skilled counsel can result in your receiving many thousands of dollars in benefits and not experiencing many sleepless nights. Remember the old adage, if you decide to be your own counsel, then you have a fool for a client. You cannot remove your emotions from the process. Therefore, get assistance from a skilled attorney who has experience in the specialized area of law. Too often, claimants retain lawyers who have very little experience in this area. These lawyers may come highly recommended by friends or colleagues. Often, they will tell you that they will “see what they can do.” Unless the attorney can point to many cases he has or is prosecuting, it will be too great a chance to take an inexperienced counsel will be successful in your case. You will not believe how many calls our firm receives from attorneys who take disability cases and get in over their heads only to call us for help. Make sure to question the attorney thoroughly to check for his/her expertise in the area. Be wary of the practitioner who does these cases every once in a while as such a person is not keeping up with rapidly evolving disability law. Be suspicious of attorneys who will charge consultation fees to speak to you. They tend to try to make money through their consultations rather than through their work performance. A confident attorney should not have to charge for a short consultation as they do not require such small fees to support their practice. Truly confident attorneys will take on contingency work since they would rather rely on their efforts and receive their reward later upon successful completion of the case. Also, attorney’s offering a free “report” are offering very little. It usually is nothing but a piece of self-congratulatory puffery combined with scare tactics designed to sell their services rather than actually tell you exactly what kind of experience they have or cases they have handled. We give all this information for free on our website so you do not have to contact us and be put on a mailing list. We dislike being placed on a mailing list for the sole purpose of marketing as much as you do.
  7. Most Importantly – Never file an appeal without the assistance of an experienced long term disability counsel. Many aspects of the denial can be challenged by developing the proper evidence and arguments. Should you exhaust your appeals, you may not be able to present additional evidence when you are left with only court proceedings which will based on the claims file. In ERISA based cases, you will not be able to present witnesses or testify. The court proceedings will only be based on your claims file in the form of paper pleadings. If the necessary evidence has not been made part of the claims file when you appealed, then you lose forever.


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