Social Security Disability Insurance (SSDI) isn’t the only kind of disability insurance available to many people with IC. Frequently, employers provide group disability insurance. But with this type of disability insurance, making and maintaining a successful claim can be even more of a minefield than making a Social Security Disability Insurance (SSDI) claim.
Get Smart, Get Tough for the Biggest Disability Challenge
Attorney Jason Newfield, Esq. of Jason & Newfield, PC in Garden City, New York, offers tips that will help you be successful in your claim. He explained why group disability insurance claims can be such a challenge. The law that governs these employer-provided group insurance plans is the Employee Retirement Income Security Act (ERISA). Although it was created to benefit employees, it “has been turned on its head by the insurance companies and exploited by them to essentially deny and terminate legitimate claims,” said Mr. Newfield. The law gives significant advantages to employers and insurance companies. In general, instead of deciding whether you are disabled, a judge—not a jury— decides whether the claims administrator abused its discretion in handling the claim based on your plan. Usually, the judge can look only at the record that was in front of the plan administrator. That doesn’t give a litigator the advantage of discovery, which means, “You don’t get to peel the layers off the onion,” as Mr. Newfield explained.
In addition, because of how these cases have been decided in the past, judges often have to defer to the judgment made by the claim administrator, who of course has a financial conflict of interest. The result is that just showing the insurance company was wrong in denying your claim isn’t enough. You have to show it was “arbitrary and capricious.” The lay term for that, explained Mr. Newfield, is “it has to fail the smell test. If it smells bad, that’s not bad enough. It’s got to be rancid.”
Because judges can rely only on the record if you go to court, Mr. Newfield’s most important advice is for you to make sure there’s plenty in the record to support your claim. That boils down to these important recommendations:
- Be cynical and vigilant.
- Be sure your doctor will support your claim.
- Keep a log of your symptoms and the problems they cause you in working and living your life.
- Don’t delay applying for SSDI.
- Get a lawyer involved early in the process if you can.
Being vigilant means getting educated on what the requirements are for your claim, what you need to do to get your claim paid—and continue to be paid, and what rights you do have under your policy if your claim is terminated or denied. (Newfield’s website has helpful information.) Take all the consequences into consideration. For example, even if your disability benefit might be small, continued benefits from your employer, such as life and health insurance, which are worth a great deal, might depend on your continued eligibility for disability. Being cynical means not putting too much stock in what you see on the surface in your policy or trusting that any health professional you see will back you up. Be prepared to be what you might think is over-prepared. And, even though you’re sick and tired, you’ve got to muster the energy for a fight. As Joy Selak urges, “Never give up.”
Get Your Doctor’s Support
“The most important recommendation I have is to have your doctor’s support because there is nothing easier for an insurance company to do than to embrace your doctor’s findings in denying your claim,” said Mr. Newfield. Make sure you don’t have a doctor who will say you have full functionality when you don’t. “How could the insurance company have acted wrongly if they accept what your doctor said?” he pointed out.
What’s more, the insurance companies are not mandated to accept the opinion of the treating physician, the way Social Security is supposed to (the “treating physician rule”). That mandate for group insurance has actually been rejected by the United States Supreme Court. “They can’t ignore the doctor, but they don’t have to defer to the doctor,” Mr. Newfield explained. Even when your doctor supports you—and you have to have that—the insurance company can send your medical records to another doctor who has never met you, never examined you, and never evaluated you who could then say, “I don’t see any objective support,” which the insurer could then use to deny or terminate your claim.
Having “objective support” is another hurdle that Mr. Newfield often has to battle for patients he represents, such as IC and CFS patients, because the diagnoses are ones of exclusion. Often, the policies will say “medical evidence” is needed, and he has to argue that medical evidence isn’t necessarily test results, it’s a doctor’s diagnosis supported with clinical evidence.
Keep a Log
Documenting your symptoms and problems is another very important thing that IC patients should do, he said. There may be a record of your doctor visits, “But what happened between those two dates?” Showing that your symptoms are constant, or at least regular, and that they have an impact on your daily life is important.
Here’s something he said he can’t argue with the insurance companies: “It’s not someone’s diagnosis that makes them disabled, it’s their limitations and restrictions in functionality.” So, when you keep records, don’t just keep a voiding or pain diary. Make notes on what that keeps you from doing—how it affects your life. Do your symptoms keep you from leaving the house for anything but a short time? With your frequency and pain, would it be too much of a challenge to maintain any continuity in a work day? Do your symptoms keep you from riding in a car or traveling? Do they keep you from concentrating? Do they keep you from sitting at a desk?
Don't Wait to Apply for SSDI
Don’t wait to apply for SSDI. It’s not wise to wait until your group insurance runs out. First, you can miss out entirely on SSDI benefits if you don’t apply within the specified time. (Generally, you have to have been working for 5 years out of the last 10). Second, many group disability policies require you to apply for SSDI. And third, even if you don’t apply for SSDI, your group disability insurer can still reduce their payments by what they estimate you would have received from Social Security.
Ironically, even though insurance companies can ignore Social Security findings about your case, they can then get the financial benefit of your SSDI award. For example, some insurance companies make claimants sign overpayment or repayment agreements, so the company gets the financial benefit of Social Security’s findings. For example, with an overpayment agreement, if the insurance company pays $4,000 a month and you win your SSDI claim and receive $2,000 a month from Social Security, the insurance company’s obligation may now be just $2,000 a month.
Consider Whether You Need a Lawyer
“A lot of people don’t get attorneys involved until it’s too late,” said Mr. Newfield. He warned that often, with these claims, “You don’t get a second chance to make a first impression.”
Remember that, usually, judges can look only at what the claims administrator had. If you haven’t supported the claim, there’s not much an attorney can do. He recommends you get an attorney involved early in the process to spot issues before they become problems. It’s easier to guide your claim than to sue when it has been denied.
Don’t avoid hiring an attorney simply because you think you have limited income. Attorneys take many cases like these on contingency. That means that, instead of you paying the attorney by the hour or by the job, the attorney receives a percentage of the money you obtain after winning your case.
Revised April 21, 2009