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Giving up before You Even Start – Walking Away from Your Disability Insurance Claim by Never Filing a Disability Claim
My father, who was a World War II naval aviator, came back from the war, went to Johns Hopkins on the G.I. Bill, and joined the family insurance business. He had the foresight to buy a disability insurance policy in the event he became disabled.
However, when he became disabled, it took him six years before he stopped working and applied for benefits. There were a lot of excuses:
- He was embarrassed that he had survived the war, but was now disabled and unable to work,
- He didn’t think his doctor would support his claim,
- He thought he would improve and be able to continue to work,
- He didn’t think it was the right time to stop work.
Do any of these excuses sound familiar? Don’t let those excuses stop you from filing a disability insurance claim. After all, you have paid premiums for a disability policy or plan, just like my dad did.
Giving Timely Notice of Your Claim and Timely Filing Your Claim
Fortunately, my father finally decided that he could no longer work, stopped working, and filed his disability within days of my graduating from high school. His disability policy, much like yours, required:
- That you give timely notice of the claim to the disability carrier and,
- That you timely file your application for disability benefits.
Each disability policy or plan has different time limits for giving notice and filing the application.
When you suspect that you may have to stop working and apply for disability benefits, it is time to get a copy of your disability policy or plan and read it cover to cover, just like my dad did before he stopped work.
There are many traps in a disability policy or plan, including the requirement to place the carrier or plan on timely notice, and to timely file a claim. Once you have made the difficult decision to apply for your disability benefits, it is time to consult with an experienced ERISA disability attorney to learn how to file a winning disability insurance application.
Don’t Let the ERISA Disability Application Discourage You and Make You Give up Your Disability Claim
The ERISA disability application process can be daunting, confusing, and discouraging.
What Questions Are on the ERISA Disability Application?
When you put the disability carrier on notice of your claim, the disability carrier will send you lots of forms to complete. The forms can include:
- The application,
- Medical release forms,
- Social Security release forms,
- Income Tax release forms,
- Daily Activity of Living forms,
- Medication forms, and
- Work History forms.
All of these forms are crucial to your claim, and can be frustrating to the point that some give up. That is letting the disability carrier win. If you are discouraged, frustrated, and ready to give up, it is time to call an experienced ERISA disability attorney.
You have a duty to cooperate with the disability carrier, and failure to do so can result in a claim denial. Every disability policy or plan has an affirmative duty to cooperate, including filling out forms, and signing releases.
Why You Must Review Your Application for Disability Insurance before You File Your Disability Insurance Claim
Do you remember filling out your application for Individual Disability insurance? Probably not.
You might have done it by yourself, or with the help of an agent. What you put on the application can make or break your subsequent disability claim. Before you stop work and apply for disability benefits, one of the key documents you must get is a copy of the application.
Why?
Let me tell you the story of one of my clients, and why his failure to get a copy of the application for disability insurance coverage doomed his claim and caused the disability carrier to claim he was committing fraud.
The application for disability insurance coverage asks a lot of questions, including the nature of your occupation, and your past medical history. Unfortunately, my client had lied about his past medical history. He denied prior problems with his neck and denied prior treatment when, in fact, he had been diagnosed with a herniated disc in his neck, had undergone a cervical MRI, and had gotten treatment.
When he applied for his disability claim, he did not get a copy of his application for insurance coverage, so he did not know what he had put on that application.
It got worse, because his claim for disability benefits was based on, as you guessed, a cervical herniated disc. The claim was fraudulent.
What Did the Disability Carrier Do?
The first thing the carrier did was to review a copy of the application for coverage. The next thing was to review his medical records, which noted a history of prior cervical issues. They then looked at his disability claim, which denied prior medical conditions, but which claimed disability because of a herniated cervical disc. They completed their investigation by getting the old medical records, which document the prior cervical problem.
At that point it was over.
The carrier rescinded the policy because of the material misrepresentation and fraud on the application. They refunded the years of premiums.
They weren’t done. They hired an attorney to file a Motion to Rescind, and claimed the policyholder had committed fraud on the application for insurance coverage, and on the disability claim. They wanted a judge to determine whether there was fraud, and they were going to refer the case to the Department of Insurance for investigation of fraud and a criminal referral.
What You Must Do before You File Your Disability Claim
Contact your insurance agent, or the insurance company for a copy of the application for coverage. Once you get it, review every question and your answers.
Are the answers right, accurate, and complete?
If not, it is time to call an experienced ERISA disability attorney for help. Your agent might have completed the application, and you might not have reviewed it before the agent submitted it to the disability carrier. The agent might have done it based on what you told them, or paraphrased your answers, which resulted in material mistakes on the application.
If the agent is still in business, your attorney will probably contact the agent to discuss the application, how it was prepared, and how the crucial questions were answered. Sometimes, the agent remembers, and sometimes they don’t remember the circumstances surrounding the application. Sometimes, they don’t tell the truth.
Sometimes, the agent has died, and finding out the circumstances can be impossible.
If possible, you want to correct the errors before you file your claim for disability benefits. Some are not going to be correctable, like the misrepresentations my former client made.
Review the application for Individual Disability coverage for errors and, if you find any, immediately hire an ERISA disability attorney. The failure to correct these errors can be fatal to your claim.
Please note that if you have a group policy, you did have to file an application for disability coverage, so you don’t have to worry about any misrepresentations.
Help! My ERISA Disability Carrier Used a Nurse to Review and Deny My Claim. Is That Right?
ERISA disability insurance carriers are not in the business of paying disability insurance benefits. When you submit your claim for your disability benefits, the claims adjuster will obtain your medical records to determine your diagnosis, the objective basis of the diagnosis, your treatment, the response to the treatment, and whether any restrictions and limitations assigned by your physician are supported by the record. Those questions will generally be answered by an in-house nurse reviewer who may not have any expertise or knowledge about your particular medical condition.
Can a Nurse-Only Denial Be Upheld in Court?
For the most part, courts across the United States hold that a review by a nurse is an insufficient reason for a claim denial. Many courts suggest that discrediting the opinions of a treating and examining physician based on the opinions of nurses employed as consultants is not reasonable. In fact, some courts go so far as to say that a consulting nurse is not as reliable a medical source as a treating or examining physician.
The denial letter will invite you to file an appeal within 180 days of the denial which, of course, you should do. You or your lawyer may point out in the appeal that the denial was based on an insufficient nurse’s review, and challenge the basis of the denial.
It is only then that the disability carrier wakes up. They obtain either an in-house or external liar for hire peer reviewer, or maybe an “independent” medical examination to justify the claims denial. The carrier will have the nurse’s opinion reviewed by a physician who, of course, will endorse and rubber stamp the nurse’s opinion.
Shazam! They have fixed the unreasonable denial, but you will have the right to rebut the new liar for hire basis for the denial. That will take teamwork. At Cavey Law, we take on liar for hire peer review doctors, challenge their qualifications and opinions, and, if necessary, get our own independent medical evaluation or functional capacity evaluation to attack the basis of the nurse and liar for hire physician’s opinions.