Typical language includes the following:

Mental Disorders, Substance Abuse and Other Limited Conditions. Payment of LTD Benefits is limited to 24 months during your entire lifetime for a Disability caused or contributed to by any one or more of the following: 1) Mental Disorders; or 2) Substance Abuse. However if you are confined in a Hospital solely because of a Mental Disorder at the end of the 24 months, this limitation will not apply while you are continuously confined. Mental Disorder means any mental, emotional, behavioral, psychological, personality, cognitive, mood or stress-related abnormality, disorder, disturbance, dysfunction or syndrome.

It should be noted that not all policies exclude coverage for substance or alcohol abuse and others do not limit benefits to 24 months when the psychological condition is the result of organic brain disease or other abnormalities. Language with exceptions to the 24 month mental/nervous cap may include: The period of disability is not limited to 24 months for a disability resulting from schizophrenia, bipolar disorder, dementia, organic brain disease, seropositive arthritis, spinal tumors, malignancy, vascular malformations, radiculopathies, myelopathies, traumatic spinal cord necrosis or muscolopathies.

In essence, under most group policies disabilities due to a mental, nervous condition will be paid for a maximum of 24 months; however that 24 month period does not have to continuous or stem from the same claim or medical condition. Additionally, most mental, nervous conditions must be contained within the DSM-IV or Diagnostic and Statistical Manual of Mental Disorders in order to be considered a psychological condition that falls within this limited coverage provision.

Often, an individual's physical disability or serious illness causes them to become depressed; and thus, the mental, nervous condition is not the primary or only disabling medical condition. Depression is found to occur at a higher rate among people with a serious illnesses, chronic pain or significant physical limitations. As such, their Depression is secondary to their illness or injury. Unfortunately, many disability insurance companies ignore the primary cause of their claimant's disability and define the claimant's disability solely as mental/nervous so that they can limit their liability and pay the claim for only 24 months.

Conditions such as Fibromyalgia or Chronic Fatigue Syndrome are often pushed into the mental/nervous category by insurers because Depression is a component of those illnesses and there are no diagnostic tests that can objectively confirm these illnesses. Thus, it is extremely important for a claimant and his/her physician to clearly identify the primary medical condition causing the inability to work and note that depression or anxiety is a result of that primary condition. The medical records should clearly convey that there are two distinct disabilities: physical/medical and psychological. Once an insurer classifies the claimant's disability as mental/nervous it takes a great deal of time, effort and convincing to get them to change their mind and agree to pay beyond the 24-month limitation period. At DI Law Group we have been very successful at preparing our clients' claims so that they are properly categorized by the insurance company as well as at convincing the insurance company that their initial determination was incorrect and benefits are payable beyond 24 months.

Where an insured is disabled as the result of a mental/nervous condition such as Depression, Anxiety, or Panic Disorder it is important for them to build a medical record which supports their claim. An individual who treats only with a primary care physician who briefly notes depression in the record and prescribes an antidepressant, most likely, will not be considered Depressed by the insurance company. It is important, at least where possible, that a person treat with a qualified psychiatrist and/or psychologist who documents the seriousness of the insured's illness and how it affects their ability to function in general and at work.

Because mental/nervous claims can be difficult to verify, insurance companies seek documentation that may not exist or is irrelevant to the claim in an effort to delay or deny paying the claim. For example, the insurance adjuster will insist on seeing the results of psychiatric testing or neuropsychological testing in addition to therapy records and notes. However, there are many times that such tests were not performed because the treating psychiatrist or psychologist was able to determine a diagnosis and plan of treatment without them and/or the cost of the test was prohibitive or not covered by insurance. Additionally, such testing may not be proper or relevant. Insurance carriers also seek information that is intrusive, highly personal and unrelated to the claim. While the treating therapist is required to keep records, fill out claim forms and provide anecdotal information, they are not required to share private conversations that took place during sessions and/or very personal information that is unrelated to the claim or unnecessary to confirm a diagnosis. Another tactic by used by insurance companies to delay or deny the approval of mental/nervous claims is to question why the insured was not hospitalized if the condition was so serious. At DI Law Group, we help our clients (and their medical providers) present the information necessary to substantiate a claim without making them feel that they have divulged extremely private information.

Finally, it is not uncommon for an insurance company to request that the insured attend an "independent" medical examination (IME) at some point during the administration of the claim. Almost all disability policies allow the carrier to make such a request. These IMEs usually involve a one or two-day neuropsychological examination and an exam with a psychiatrist. However, more often than not the insured is sent to a doctor who does not spend most of his time treating patients, but works for insurance companies performing independent medical examinations. Not surprisingly, these insurance friendly doctors often find that the inured is not disabled and can return to work in their own occupation or any occupation. Our firm takes the steps necessary to ensure that these independent medical examinations are as objective and fair as possible.

If you are struggling with a mental/nervous condition or your insurance carrier has wrongly determined that your claim is subject to the 24 month mental/nervous payment cap, call DI Law Group today for a fee consultation. We are happy to answer questions about all disability policies and claims whether your claim is still being reviewed for payment, you are on claim, or your benefits have been terminated. We can be reached toll free at (888) 644-2644 or through our website at www.dilawgroup.com.

Possibly the most important situation that such a proper designation protects against is a cancellation or lapse of an insurance policy due to non-payment of premiums. In most states, long-term care policies must provide the insured with a 30-day grace period for payment of a premium. Many state laws take this further, and require that a long-term care insurance policy cannot be cancelled by an insurance company for nonpayment of premiums unless the 30-day (or longer) grace period has expired AND proper notice has been provided to the insured following the grace period expiring which advises the insured that the policy may lapse (i.e., be cancelled) if the outstanding premiums are not paid. An insurance policy or state law may actually provide for the right to designate a third party to also receive a copy of this notice. This could be critical to keeping a long-term care insurance policy in force in a situation where the insured is not otherwise able to ensure that premiums are paid current. For example, an insured may begin to experience the onset of symptoms of Alzheimer's or Dementia for a period of time before the person obtains a diagnosis or before a family member or friend notices. Such conditions often result in a person being unable to manage bills. Or, the insured may have become very ill quickly and was unable to keep up with bills. Or, an aging individual (who is the most likely to have an need long-term care insurance) gradually becomes unable to manage personal affairs such as making sure premium payments are current, or overlooks a premium payment. Persons in these situations may not receive or may not realize they received a notification that their policy will lapse or be cancelled if premiums are not paid current, and no one else may be aware that the person has a long-term care insurance policy which needs to be paid current in order for the policy to remain in force.

In the case where a third party has been properly designated to receive notice that a long-term care policy will lapse if premiums are not paid current, the third party can receive notice of the nonpayment of premiums before it is too late and hopefully prevent the long-term care insurance policy from lapsing. The loss of this insurance coverage could result in huge financial loss.

Some state statutes allow for even additional protection for an insured in this situation where the failure to pay premiums was unintentional and due to cognitive impairment, loss of functional capacity, or hospitalization, and require the insurance company to be reinstated within a certain period of time if all premiums are paid current upon discovery of the situation. However, the law varies by state, and insurance companies do not always properly apply the state law. Thus, a seemingly simple situation can become complicated very quickly, and insurance company representatives do not always properly apply the law or accurately interpret policy terms.

When designating a third party, it is important to follow the insurance company's procedures and meticulously complete all necessary paperwork to ensure that the designation is properly made. Keep copies of all documentation, and keep a detailed log of all telephone calls supporting the designation of the third party - do things in writing where possible. Additionally, it is important to remember that an insurance company's obligation to notify the third party only extends so far. Normally, an insurance company must only mail the notice to the third party's last known address on file with the insurance company. Thus, it is very important that all contact information for the third party designee is kept current, and that any updated contact information is made in writing and follows the proper procedures of the insurance company. It is critical to keep copies of all information submitted in providing updated contact information, and to keep a log of any telephone calls regarding these issues as well. The situation does arise where an insurance company takes the position that it mailed the third party notice to the last known address that it had on file for the person, but the insurance company actually mailed the notice to an old address that was not updated in its files for whatever reason. Documentation to refute the insurer's position that it properly mailed notice to the last known address on file for the person is crucial.

If you are uncertain as to whether your long-term care insurance policy or insurance company allows for such a designation, you could contact your insurance agent or insurance company to inquire as to whether it is possible, or you could contact an experienced long-term care insurance attorney to have your policy reviewed or better understand the law governing your policy.

Also, do not "take your insurance company's word for it" when it takes the position that your (or your loved one's) long-term care insurance policy has lapsed for nonpayment of premiums. There are many requirements that an insurance company must strictly follow before a long-term care insurance policy may be cancelled for nonpayment of premiums, and there are also exceptions under the law when such cancellation can occur. If you are facing a situation involving cancellation of a long-term care insurance policy due to nonpayment of premiums, contact one of our experienced attorneys today for a free consultation.

• Look Back Provision: This provision defines which conditions are considered to be "pre-existing." Typical wording includes: "A condition for which medical treatment or advice was rendered, prescribed, or recommended or medications taken within the 6 months prior to effective date of coverage." Ninety days to six months is the norm for a look back period.

• Pre-Existing Condition Waiting Period: This is the period of time you must be covered before a pre-existing condition no longer excludes the insured from coverage - even if the disabling condition existed prior to the Policy's effective date or began during the first 12 months of coverage. It is usually one year, but can be longer depending on the plan.

Thus, under most policies if the insured becomes disabled more than one year after the policy was procured and coverage in effect, then the insurance company cannot deny benefits based on the pre-existing condition exclusion. However, where an insured becomes disabled within the first 12 months of coverage, it is not unusual for the insurance company to improperly deny benefits based on the pre-existing condition exclusion - even if it does not apply to the disabling medical condition. If the insurance company can find any medical history even remotely related to the subject injury or illness, then it is quite likely they will determine the disabling condition was pre-existing and deny coverage. However, in many instances the disabling medical condition is not pre-existing and the prior treatment pointed to by the insurance company was rendered for treatment completely unrelated to the subject illness or injury. Do not accept what the insurance company decides without a close review of your medical records and their rationale. Also, keep in mind that the pre-existing condition exclusion is tied to the date coverage under the Disability Policy became effective. Thus, if an insured had a medical condition at the time they took out the policy (and disclosed it if required on the application for coverage under the policy) which became worse over time and resulted in his or her inability to work 2 years later, that condition would no longer be excluded under the pre-existing condition provision. Moreover, it is important to understand that many courts hold that the insurer has the burden of proving the applicability of the exclusion or at least making a sufficient showing of its applicability. It is thus the insurance company's burden to provide sufficient evidence that the insured consulted, sought treatment or services, or took prescribed medication FOR the disabling medical condition during the "look back" period.

If you have questions about your disability policy or claim; you are concerned that your policy's pre-existing condition provision may apply to your claim; or your claim has been denied due to a pre-existing exclusion or for any reason, please contact our firm for a free consultation at info@dilawgroup.com or toll free at (888) 644-2644. For more information about disability insurance claims, long term care claims or life insurance claims, please visit our website www.dilawgroup.com

However, this does not mean that an insurance company is free to abuse this provision by attempting to enforce or interpret the provision in an unreasonable manner and beyond the provision's actual purpose and meaning. There are many reasons why an insurance company's request to enforce this provision and require an "examination" should be aggressively challenged. For instance, the examination should be with a medical professional appropriately trained to evaluate the type of medical condition at issue, the examination should be scheduled within a reasonable distance of a claimant's residence and at a time convenient for the claimant, the testing requested must be safe for a claimant to undergo in light of his/her medical condition, and the examination should be requested by the insurance company at the appropriate stage of its evaluation of a disability claim. This is not an exhaustive list, and whether an insurance company's request for an examination is reasonable depends on the facts and circumstances unique to each individual case. However, it is critical to be aware that an insurance company is permitted under the law to reasonably enforce these provisions and require an examination by an appropriately trained medical specialist - a refusal by a claimant to undergo such an examination can result in a denial or suspension of disability benefits on this basis alone. Courts will agree that an insurance company was permitted to deny or terminate benefits in this situation where such provision exists in the policy, unless there is a very good reason for a claimant's refusal or failure to undergo the examination. A refusal by a claimant to cooperate must be handled in a very careful and strategic manner to remain compliant under the law so as to not interfere with a claimant's right to receive continued benefits under the policy.

If the examination requested is to occur, certain precautions in agreeing to undergo the examination are a must. These examinations scheduled by insurance companies are anything but independent, and are performed by their regular "hired guns" who receive a large percentage of their income from performing examinations at the request of insurance companies such as yours. The "hired guns" performing these examinations at an insurance company's request regularly participate in twisting the words of the claimant being examined, misrepresent what a claimant did during an examination, intentionally neglect to report certain information obtained during the examination which would serve to support the claimant's disability claim, and go beyond the scope of the medical evaluation in their report to attack a claimant's credibility and disability claim. Furthermore, the doctor chosen by the insurer may only take 10-15 minutes to conduct his or her entire "independent evaluation" of the claimant, including the interview process and the "examination" itself. The doctors paid by the insurance company (who are motivated to please the insurance company who pays them an exorbitant amount of money to perform these "independent" examinations) do not wish to discover or be made aware of evidence that supports a claimant's disability claim by way of conducting a more thorough examination.

Beware that insurance companies also use this as an opportunity to hire an undercover surveillance team to follow a claimant to and from the examination and videotape you the entire time. If the surveillance videotape shows any level of activity, rest assured that it will be provided to the insurance company's hired "independent" doctor for comment in his/her report being drafted following the "independent" evaluation. If the surveillance videotape does not show activity or shows evidence of a claimant's restrictions and limitations, it will not likely be provided to the "hired gun." In this situation the insurance company will not likely admit that surveillance videotape was ever conducted, despite it supporting the disability claim - however, a skilled attorney should be able to determine whether surveillance was conducted and whether it supported the claim for benefits and use as support for payment of the disability claim.

Any request for an examination by an insurer in a disability insurance claim must be taken very seriously, and be quickly and aggressively handled. How such a request should be responded to varies greatly based on the unique circumstances presented and must be scrutinized on a case-by-case basis. DI Law Group is regularly involved in dealing with insurer's request for a examination with a physician of its choice, and not only aggressively requires that such a request and examination be reasonable under the policy provisions and the law, but has also successfully caused cancellation of such examinations where they were unreasonable while still preserving our clients rights to ongoing benefits under the policy. Furthermore, where an examination is permitted to go forward to ensure that our client's right to ongoing benefits is preserved, it is aggressively managed and scrutinized by our experienced attorneys - the examination is only permitted to go forward upon agreement by the insurance company to very specific stipulations necessary to protect our client's rights. We may require that the scope of the examination/evaluation be limited in scope, we may require that our client's treating doctors are provided with the insurance company's doctor's report (which the insurance company will not normally release upon request by a claimant) upon completion to be allowed the opportunity to review and respond to the report, we may demand that a videographer or attorney be present for the entire examination, we may require the insurance company to provide transportation for our client to and from the examination, we may schedule our own independent medical evaluation of our client to dispute the insurance company's doctor's report and to provide evidence in support of the disability claim, among other strategies. Evaluations based upon psychiatric medical conditions have their own special considerations.  We many times see the same doctors being used time and again by the insurance company to conduct these "independent" evaluations - we regularly utilize prior depositions, subpoenaed documentation, court decisions, and other information to dispute the "independence" of these doctors chosen by the insurer and we do so on the record. How these examinations requested by insurance companies are dealt with, however, is highly strategic and must be handled in an extremely cautious manner. If you have been requested by your disability insurance company to attend an examination, you may wish to contact an experienced disability insurance attorney for assistance. At DI Law Group, we provide a free initial consultation for claimants in this situation.

The focus of this article is the impact of Social Security Disability benefits on an insured's Long Term Disability benefit amount. Significantly, it should be noted that in most cases benefits received from profit sharing plans, 401k plans, employee stock options, tax sheltered annuity plans, severance pay, and individual retirement accounts will NOT reduce an insured's monthly disability benefit.

Under the terms of most Long Term Disability policies, the disability insurer is provided a dollar-for-dollar deduction of social security disability benefits received by their insured. Equally important is that the LTD plan usually allows the insurer the right to reimbursement for any "overpayment" when the insured is given a retroactive lump sum benefit payment. In fact, it is not unusual for an insurance carrier to send a "Social Security Reimbursement Agreement" along with the application for disability benefit forms.

What is the impact of these offsets on long-term disability benefit calculations? When an employee becomes totally disabled, under the terms of his or her LTD plan the employee is guaranteed a specific percentage of monthly earnings (usually 60%, but it can be higher or lower depending on the plan's terms). For example, if the plan provides a target monthly benefit of 60 percent of earnings, and the employee becomes totally disabled while earning $36,000.00 per year ($3,000/month), his monthly LTD benefit will be $1,800.00. If that same employee also qualifies for primary Social Security disability benefits of $800/month, the benefit would be reduced to $1,000.00 (Gross LTD Benefit of $1,800 minus $800 SSDI benefit results in Net LTD Benefit of $1,000.00). Under many plans, the gross LTD benefit can be further reduced by SSDI benefits awarded to the insured's spouse or children as the result of his/her disability. However, annual cost of living increases for SSDI benefits are normally excluded as an offset.

Almost every policy includes language obligating the insured to pursue all Other Income Benefits or Deductible Income for which the inured may be eligible. Additionally, written documentation confirming that such benefits are being pursued is often required. If such benefits are not applied for, then under the provisions of most policies, the insurance carrier has the right to estimate the insured's entitlement to these benefits and then reduce the monthly LTD benefit by the estimated amount. However, in most cases the carrier will not reduce the monthly benefit by an estimated amount if the insured: 1) applies for all deductible income benefits to which he/she may be entitled; 2) appeals any denial to all administrative levels the carrier feels are necessary; and 3) signs the insurance company's Reimbursement Agreement form, which states that the insured promises to pay the carrier any overpayment caused by an award.

What is an overpayment?

If we apply the following facts:

• The insured is entitled to an $1,800/month LTD benefit;
• The Insured received this benefit for 18 months;
• The insured was recently awarded Social Security Disability benefits in the amount of $800/month;
• The SSDI award determined the insured to be eligible for the first SSDI benefit payment 12 months prior to the decision;
• The insured is expected to receive a lump sum payment from social security of approximately $9,600.00 ($800 per month times 12 months).

According to the terms of the LTD policy, there was an overpayment to the insured by the insurance company in the amount of $9,600.00. Thus, even though the insured did not receive any deductible income for the first 18 months he received LTD benfeits, the insured is contractually obligated to reimburse the insurer for that money.

When the insurance carrier finds out that the insured has received a retroactive lump sum benefit award, the insurer usually has the option of demanding one lump sum reimbursement check, reducing the monthly benefit by a certain dollar amount until the overpayment has been reimbursed or ceasing all benefit payments until the overpayment has been repaid.

Should you sign the Social Security Reimbursement Agreement? In most cases, the simple answer is "yes". Since the insurance company is typically entitled to an offset based on the amount of SSDI benefits received by the insured, signing this Agreement usually ensures that the insurance company won't offset an estimated benefit amount from the monthly LTD benefit and that no offset will be applied until such benefits have been awarded. Just as importantly, an insured's willingness to sign this Agreement allows the insurer to feel comfortable that the insured understands and acknowledges the offset, has agreed to reimburse the insurer for any retroactive benefits awarded; and understands that should a lump sum benefit be awarded by social security that amount is to be paid to the insurance carrier as reimbursement for an overpayment. In return, the insurance company will agree to pay the gross LTD benefit amount until such time that all applicable offsets have been determined.

Following are a few additional pieces of information to help you better understand the Other Income/Deductible Income provisions. Typically, there is no offset against Short Term Disability benefits because the Social Security Administration does not pay benefits until several months after the date of disability. Second, the insurance company is not normally entitled to offset any Cost of Living Adjustments paid by the Social Security Administration. However, under most policies, they can offset the benefits received by an insured's family as a result of the insured's disability.

Often times, SSDI benefits are not awarded following the initial application for benefits and the insurance carrier will require the insured to appeal that denial. At that point, or possibly at the onset of the claim for LTD benefits, the carrier will recommend an attorney to facilitate the application for SSDI benefits or represent the insured during the appeal process and suggests that they will pay the attorney's fee. In the opinion of the attorneys at DI L aw Group, it is disingenuous for them to provide such representation and we often recommend that our clients obtain local representation. Should you have any questions about your disability policy, what sources of deductible income may result in an offset to your LTD benefit or simply want to discuss the terms of your disability policy to better understand how you will be affected should you become disabled, please contact us for a free consultation at 1 (888) 644-2644.

• Individual Disability Policies - These policies are procured by the insured (or his/her agent), paid for by the insured directly and are not an employee benefit or business expense. Thus, in most cases the disability benefits are not taxable and may pay beyond age 65 or for life. Should the claim be denied, the insured can either file an appeal of the denial or proceed straight to litigation.
• Group Disability Policies (Long Term and Short Term) - These policies are provided through an employer and often fall under the jurisdiction of the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA the insured presents the disability claim to the disability plan's administrator along with evidence of disability. If the plan administrator denies the claim, the insured must first appeal the denial; he or she may not proceed directly to litigation. If the claim is denied, then the importance of filing a complete appeal with all proof of loss and evidence of disability cannot be overstated.
• Business Overhead Expense Policies (BOE) - These policies provide reimbursement for the expenses of operating a business if the Insured is disabled and cannot work and may cover at least part of the salary of a professional temporary replacement - such as a doctor retained to fill in during the Insured doctor's period of total disability. These policies are often written with ambiguous and confusing policy language. Insurance companies often challenge certain expenses as not covered under the policy and refuse to provide the full monthly benefit.

When filing for benefits it is imperative that you understand whether you are entitled to full (total) disability benefits, residual (partial) disability benefits, lifetime benefits, benefits for only a limited time period and the impact of choosing to accept retirement or disability benefits from another source can have on your disability claim.

Policies which incorporate a residual or partial disability definition, or in which a residual disability rider was purchased, may apply where an individual continues to work and perform some or all of the duties of his or her occupation, but due to a disability is unable to perform those duties for as much time or as often as he or she did in the past. Typically, you must also suffer an income loss of at least 20 percent. Under many policies you may qualify under both the total and partial disability provisions, though you can only collect benefits under one. Often, insurance companies will attempt to assert that since you fall under the partial disability provision, you are not totally disabled. In most cases, your total and partial disability provisions are separate and distinct, for which you likely paid additional premiums. As such, it is inappropriate to deny coverage under the total disability provisions, because you also qualify for partial disability. Your insurance company has a duty to act in your best interest. Unfortunately, this is not always the case.

Under most disability policies there is a distinction between disabilities caused by a sickness or illness and one caused by an accident or injury. This distinction can be quite important. Some policies will provide lifetime benefits IF the disabling condition is the result of an injury. Thus, many insurance companies will try and attribute a back injury to degenerative disk disease, rather than to the specific accident which may have been the cause. Additionally, many policies only provide 24 months of benefits for mental/nervous illnesses, such as depression, panic disorder or post traumatic stress disorder. However, some illnesses are not truly mental/nervous, but the result of an organic injury to the brain. Quite common is the case where the insurer will deem a secondary illness (such as the depression that may result from a serious injury or illness) as the primary disabling condition and try to limit benefits to only 24 months.

Another way insurance carriers attempt to deny or limit benefits is to assert that the insured was engaging in two or more separate and distinct occupations, as that will require the insured to show that she is totally disabled from all occupations in order to be entitled to total disability. Raising the dual occupation defense may allow the company to deny liability all together. Insurance companies frequently attempt to show that secondary duties, (such as a doctor or dentist taking over the administrative functions of their practice) were previously a part of the material and substantial duties of his/her "own occupation" and deny benefits.

As indicated above, if your insurance company denies your disability claim it is crucial to know whether or not your claim is governed by ERISA. Under ERISA, claimants are required to appeal a denial of disability insurance benefits directly to the insurance carrier within 180 days. In most ERISA claims, if you fail to provide any information to your insurance carrier within your appeal, you are forever barred from presenting it during your lawsuit. Essentially, you must prepare your lawsuit before filing suit. In a private or non-ERISA disability insurance claim, if your insurance carrier wrongfully denies your claim, you can file a lawsuit and begin to gather all of the evidence you need to prove your case at trial. This includes obtaining all of your medical documentation, eliciting testimony from your family members, friends, and co-workers that have knowledge of your condition, and obtaining independent medical and vocational expert opinions. Most claimants would not choose to prepare for or go to trial without the aid of an attorney however, many claimants simply do not understand that by submitting an ERISA appeal without consulting an attorney with experience in ERISA disability claims, they are basically doing just that.

Before filing a claim for disability benefits, responding to questions from your carrier about your job or medical condition, renewing or changing coverage or filing an appeal, understanding your policy's terms and conditions is vital and can be the difference between a smooth claims process and the approval of your claim and the delay or denial of benefits. For information about your policy or claim, please contact one of DI Law Group's attorneys for a free consultation.

At the beginning of a disability insurance claim and periodically thereafter, claims examiners will often request that you submit to a telephone interview. This is usually presented as a casual attempt to gather information or update your file. Do not be caught off guard. Claims examiners are taught to ask questions in such a way to illicit certain answers which can be taken out of context to create the appearance that there are inconsistencies between your statements and your medical information. This can be used to justify a secret surveillance investigation of you by a private investigator hired your insurance company, a medical examination by a physician chosen by your insurance company, or even a denial of your claim. Carefully consider each question posed by your insurance company and ask them to clarify any questions that are in any way ambiguous. Often claims examiners will ask open ended questions, so that claimants feel compelled to continue talking until interrupted. Without realizing it, claimants may be giving a false impression of their abilities. Likewise, in regards to certain questions, claims examiners will try to limit a claimant's answers to a simple "yes" or "no." Do not be afraid to give an explanation where one is needed, even if you are discouraged from continuing your answer or are being rushed to move on to another question. Giving incomplete answers can be devastating to your claim. For this reason, at Disability Insurance Law Group, we always thoroughly discuss all aspects of a claim with our clients before an interview and never allow them to speak to an the insurance company's agent without our presence.

Insurance companies will often require claimants to submit to a Field Interview by one of its investigators. Usually, insurance companies will request that these interviews take place in the claimant's home, so that they can inspect the claimant's living environment. At Disability Insurance Law Group, we never allow an interview to take place in a claimant's home. This is because the interviewer will take notes on whether there are stairs in your home, whether necessities are located on high or low shelves, whether the home is kept up, whether there is a long distance to take the trash to the curb, and whether there are assistant devices. Often, the investigator's observations alone are misleading, as many claimants have friends, family members, or employees who help them with household chores.

These interviews are often associated with surveillance either before or after the interview. Sometimes the interviewer will ask the claimant general questions about the claimants abilities and use surveillance video to attempt to show a discrepancy between the claimant's statements and the video footage. Often, the video footage is innocuous and not inconsistent with the claimant's answers, which were merely taken out of context by the investigator. However, an unprepared claimant can be caught off guard and unable to fully clarify. Other times, the investigator creates a report subtly misrepresenting the claimant's statements and pressures the claimant to immediately review and sign it. If the claimant does not notice the misrepresentations and signs the document, the claimant has asserted that all the information in the report is correct. Often these interviews are intimidating and confusing for claimants. We allows attend our clients' field interviews, demand that they take place in our office or a neutral location, and will not allow our clients to sign any document without first thoroughly examining it.

Unfortunately, despite the purpose and true intent of ERISA articulated by Congress to protect employees, ERISA has had the devastating effect of providing lesser protection to employees and their beneficiaries than they had prior to the passage of ERISA. ERISA administrators (including insurance companies acting as administrators) are well aware of the advantages of a benefit claim being governed by ERISA and take advantage of the lack of exposure that it allows the company to enjoy.

To begin, the lack exposure that an insurance company enjoys under ERISA is due to ERISA depriving employees of access to state laws that provide for greater protections and damages when an insurance company or other administrator denies benefits to employees under benefit plans (which, again, includes things like disability, life, and long-term care insurance benefits). The damages available to an employee who must file a lawsuit under ERISA are significantly restricted as a result of ERISA preempting (superseding) state laws. The only damage that an employee is guaranteed in court, if successful in a lawsuit filed under ERISA, is the plan benefit itself (e.g., the disability benefit, life insurance benefit, or other benefit at issue). There is no access to compensatory, punitive, or other damages that are available under state laws to deter unlawful conduct by insurance companies. As such, if individuals lose their home, must file for bankruptcy, are penalized for withdrawing from retirement funds, incur significant late charges or damage to their credit, suffer worsening in their health, or incur other damages because of an insurance company's (or other ERISA administrator's) wrongful denial of their employee benefit, the insurance company will not be responsible for these damages despite having caused the losses by its unlawful actions. The insurance company will only be required to pay for the employee benefit itself, and the employee will never be reimbursed or "made whole" for the injuries suffered as a result of the insurance company's refusal to pay the employee benefits when they were due. Furthermore, the standard to be compensated for attorneys fees incurred in prosecuting the lawsuit to obtain wrongfully withheld ERISA benefits is even much harder to meet than most state laws. Penalties created under ERISA for a failure of an ERISA plan or administrator to comply with ERISA are granted by the courts in such limited circumstances and reduced amounts that the effect is to not penalize administrators at all for failures to comply with the specific requirements of ERISA, which defeats the entire purpose of a legal penalty for failure to comply. The impact of ERISA's limit on access to damages by employees who have been wrongfully denied employee benefits cannot be understated and has the perverse effect of providing absolutely no motivation for an administrator or insurance company to approve employee benefits and allowing an ERISA administrator to walk away unscathed even when it is found by a court to have illegally denied plan benefits. Why would an administrator or company pay the benefits when there is no penalty or other exposure to the company if a court finds that the benefits were wrongfully denied? The company is only required to pay the benefits it should have paid in the first place in court, even if a court finds its behavior to have been so egregious as to be arbitrary and capricious, which is in and of itself a very difficult standard to prove under the law and a hurdle for employees who must pursue a lawsuit against these large companies.

The limited access to damages in Court is only one of the ways that ERISA changes the landscape of employee benefits law. Once in court, an employee does not have a right to a jury trial, and will only be permitted a bench trial (with a judge) on rare occasions. Normally, an ERISA benefits lawsuit is decided on extensive briefings that are limited to arguing the information contained within the paper file of the administrator or insurance company who has denied the employee benefits at issue. The judge will virtually never meet the employee, the employee will not have the opportunity to testify and explain the situation to the judge, nor will the employee's doctors, family members or other critical witnesses with knowledge about the benefit claim and wrongful behavior of the ERISA administrator denying the benefits. It is therefore critical to submit all information to the ERISA administrator (usually an insurance company) for consideration during the application and appeal process so that if a lawsuit becomes necessary to enforce an employee's right to the benefits at issue, the court involved will review the information. It is too late to wait until a lawsuit becomes necessary to submit evidence of the employee's right to the benefits, and the evidence will never be reviewed by the court unless it was first submitted to the company for consideration. The paper file reviewed by the judge is created and maintained by the administrator or insurance company that is denying the benefits, and many times employees (now plaintiffs in a lawsuit) are not even permitted by the judge to test the completeness of the record compiled by the administrator or insurance company (now a defendant in the lawsuit) through discovery that is traditionally available to plaintiffs in lawsuits. Discovery is normally allowed to ensure that documents or information has not been withheld by the party in control of the documents or information in order to improve its case or mislead the court into believing something that is not true or accurate. This provides yet another advantage and protection to the defendant administrator in court. Furthermore, once in court, the question before the court is not whether the employee is entitled to the employee benefit at issue. Instead the court will review the paper file to determine whether the ERISA administrator was so unreasonable as to be arbitrary and capricious in denying benefits. If the ERISA administrator can point to facts that show that it was reasonable to deny benefits (even if it was wrong to deny benefits) then the court will defer to the decision of the administrator and uphold the denial of the employee benefit. Sometimes the reason by the administrator determined by the court to render the decision reasonable under the law is so contrived that it is nothing short of unbelievable - often this includes an in-house medical report or a "bought and paid" for report drafted by a doctor or other expert that only testifies for insurance companies which was drafted to be used by the insurance company to support a denial of benefits. Separately, and of great significance, is the requirement that an employee must exhaust his or her administrative remedies before filing a lawsuit based on its employee benefit claim. This means that when an ERISA employee benefit is denied, an employee must first complete the appeals with the ERISA administrator within the required timeframes before the employee ever has a right to pursue his or her claim in court, no matter how unreasonable the ERISA administrator acts during the claims process. A failure to complete the appeals process within the necessary timeframe before filing a lawsuit acts as a complete bar to the right to pursue a lawsuit in the claim.

Cases involving ERISA benefits are highly technical and insurance companies are very aggressive in denying these benefit claims. The differences between your insurance benefit claim being governed by ERISA or by state law is hugely significant to your case, and an ERISA benefit case must be handled much differently than an individual insurance benefit case. We know, because we see this in our daily practice of insurance benefits law. If your benefits claim is governed by ERISA, it is seen as an advantage to the insurance company and a disadvantage to the individual with the rights to pursue the case. Insurance companies and other ERISA administrators have both in-house attorneys and outside counsel that provide advice on how to specially handle ERISA claims and have the resources available to ensure that your benefits claim is scrutinized in a way so as to lessen your chances of obtaining the benefits in court as much as possible. Much of our practice is devoted to getting ERISA benefit claims approved by insurance companies and other ERISA administrators prior to a lawsuit becoming necessary, by representing individuals in the filing of their applications for the employee benefits at issue, and aggressively handling administrative appeals with the insurance company if those benefits have already been denied at the initial stage. However, we also regularly litigate these cases in federal court, both at the district court and appellate court levels. ERISA litigation can take years of aggressively briefing and developing the case before the Court. It is critical that in choosing an attorney to assist you with your ERISA benefit claim, you select an attorney who has significant experience in this very specific body of law. A lack of knowledge as to any one of the nuances of this very specific and complex law which is constantly changing could be devastating to your success in obtaining the benefits from the ERISA administrator who has endless resources available at its fingertips. It is highly advisable that you consult with an ERISA attorney prior to exhausting the administrative appeals process with your insurance company (or employer) because the appeals process is your opportunity to present evidence for your trial with the insurance company, and any reviewing court will ultimately review only the information submitted to the insurance company during the administrative process. Waiting until a lawsuit to present evidence is far too late in these cases. Knowing what information to develop and submit for consideration to the insurance company / administrator is absolutely critical to your success in securing your employee benefits, and years of legal experience in ERISA law by an ERISA attorney provides an irreplaceable and vital perspective on what information is legally significant to your case. An experienced ERISA attorney can take charge of gathering and developing the necessary information for your case, and strategically utilize this information to level the playing field between the employee and the ERISA administrator with complete control over the benefits claim, despite the state of ERISA law which shields the insurance company from exposure and fails to protects the interests of the employee. If you have questions or concerns related to your employee benefits, contact one of our experience ERISA attorneys at www.dilawgroup.com.

Understanding a Policy's definition of disabled/disability and what is required to maintain coverage under your disability policy is crucial, as a decision to change your work related duties, reduce your hours, work from home, resign, sell or close your business could impact the amount of your benefit or result in a total loss of coverage. Under most policies, disability is based on your occupation at the time of disability. Thus, the decision to reduce your work hours or change your job duties in order to continue working may impact the way your claim is evaluated and whether or not benefits are paid.

Under employer provided disability policies (ERISA policies), significant coverage issues arise when an employee, knowing they cannot work much longer but not wanting to leave their employer in a bad position, reduces their hours and advises that they plan to resign on a specific date. Because the employee is only covered if he or she becomes disabled while an employee and/or while working a minimum number of hours per week or month, the decision to work less or resign on a specific date may result in a determination that the employee was not covered under the disability insurance plan on their date of disability.

Under individual disability policies, the insured will maintain coverage as long as they pay the policy premium. Many of our clients with individual policies own their own business and have worked hard to make that business successful. Unfortunately, at some point their medical condition forced them to work less and consider either selling or closing their business. It is equally important for these individuals to be aware of their policy's provisions and how their benefit amount could be affected by the decision to work beyond their physical or mental capacity. If the claim is not properly documented or worked up, insurance companies will find reasons to reduce the benefit or deny the claim outright.

In addition to speaking with someone about the terms and provisions within your disability policy, it is important to talk to your doctor. Your doctor needs to be supportive of your decision to take a medical leave because the insurance company will request your medical records and may even contact your doctor for an interview about your medical condition. While many of our clients have worked for years despite having a serious medical condition such as Multiple Sclerosis, Lupus, degenerative disc disease, HIV, knee and hip replacements, they ultimately became unable to perform job duties and their treating physician advised them to slow down and/or stop working because their symptoms, which were once manageable, had now become debilitating. Making sure your medical history and condition is accurately reflected in the medical records and that your doctor is aware of your limitations and supportive of your claim will make the application process less stressful and more efficient.

At DI Law Group we help many of our clients prepare for the possibility of a disability claim and work with them to make sure that if and when that day does arrive, the application and claims process is smooth and benefits are paid as quickly as possible. Please feel free to contact us with any questions about a potential or current claim for disability benefits. We represent clients who are preparing to file a claim, have filed a claim and benefits have been denied or terminated, are in need of our help to administer their existing claim, negotiate a lump sum buy-out of a claim, or litigate their claim in court.

When DI Law Group prepares an appeal in which a paper reviewer was relied on to deny a disability insurance claim, we do a thorough investigation of the paper reviewer, including a background check, an evaluation of the paper reviewer's prior court testimony, and an analysis of how often the paper reviewer is hired by insurance companies to perform these reviews. More often than not, we have already come across the physician and can extrapolate a pattern from the reviewer's prior reports and/or have ample information regarding the reviewer's background. This is important information for a claimant's appeal.

Moreover, it is essential that we thoroughly evaluate the paper reviewer's report and provide a detailed analysis of why the conclusions are incorrect, as well as pointing out any inconsistencies found in the report and with the claimant's medical records. Often this requires that we consult with our independent medical consultants and the claimant's physicians.

Further, we often obtain our own independent paper review and/or independent medical examination by a specialist in our client's disability. Likewise, we closely work with our client's physicians and obtain detailed statements regarding our client's condition, symptoms, and limitations, as well as the physicians' opinion regarding the insurance company's paper reviewer's report. Finally, we often obtain personal statements from our clients and their friends and family, clearly explaining our clients' functional abilities.

Insurance companies commonly utilize paper reviewers to support a denial of disability insurance benefits. Typically, these paper reviewers earn a substantial income from this type of work and are motivated to find claimants not disabled. This common insurance company tactic is so pervasive that a case in which DI Law Group was able to successfully overturn a denial of benefits based on an infamous paper reviewer was featured on Good Morning America and was one of the reasons Senator Max Baucus held a Senate Hearing regarding the current state of the law.

By way of example, the language in the severance agreement that would raise concern may be similar to: "By signing this agreement, you, your agents, assigns, heirs, executors, and administrators, agrees to forever release employer, employer's parents, affiliates, subsidiaries, predecessors, successors, assigns, attorneys, and any director, officer, agent, trustee, employee, representative, insurer, employee benefit or welfare program or plan, from any and all claims, demands, actions, causes of action, liabilities, damages, known or unknown, which you now have, or claim to have, which arose at any time prior to the date you execute this agreement, including, but not limited to, under any federal, state, local or foreign law dealing with or regulating employment, The Age Discrimination in Employment Act ("ADEA"), The Americans with Disabilities Act, The Rehabilitation Act, The Family and Medical Leave Act, The Civil Rights Act, Employee Retirement Income Security Act ("ERISA"), Equal Pay Act, breach of contract, claims for unlawful discharge, any law related to emotional distress, mental anguish, benefits, wages, hours, discrimination, harassment, or retaliation." Such a provision may extend for a much shorter sentence than the above, or a more extensive paragraph, or even an entire page or two of the agreement. There may be additional definitions or provisions contained within the severance agreement, or included as an addendum or attachment to the agreement, which could further impact the question of whether you are waiving your rights to pursue your disability benefits claim by signing the agreement. The language is likely extremely complicated, and the true meaning of the provisions or potential application of the provisions in court may be convoluted and ambiguous. The language may not make clear whether you are specifically waiving your rights to any disability claim under an employee benefit plan, or it may make it very clear that you are waiving your rights. Either way, it is critical to have a skilled attorney review the terms of your severance agreement before you sign the severance agreement. A skilled attorney can provide you with advice on how to ensure that you do not waive your rights to pursue your disability claim while still proceeding with the severance agreement which will provide you with severance pay that may be a necessity. Once the severance agreement is signed, there is no going back on the language contained therein. We have had occasions where we've had to reject handling potential clients' disability benefits claims because the clients signed a severance agreement with their employer which had the effect of waiving their rights to pursuing their disability benefits claim. However, at DI law Group, we are also regularly involved in advising clients in regard to necessary revisions to a severance agreement before they sign to avoid a waiver of their rights related to their disability claim, and we work with our client, our client's employer and attorneys to get this done.

It is critical to point out that there are customarily other standard provisions within the severance agreement which serve to protect the employer from claims by employees who sign a severance agreement but later allege that they did not understand that they were waiving certain rights when the signed the agreement and accepted the severance pay, and thus, that because they did not knowingly waive those rights, the rights should not be waived under the law. An example might be an employee who signs a severance agreement out of desperation to receive needed severance pay, or who signs the severance agreement without fully reading or understanding the terms because they "just want to be done with it". By way of example, many times above the signature lines to the agreement is a provision that reads something similar to: "By signing this release, I state that: I have read it; I understand it and know that I am giving up important rights; I agree to all the terms contained within the agreement, I am aware of my right to consult with an attorney before signing it and have had the opportunity to do so; I have consulted with my attorney before singing it; I have signed it knowingly and voluntarily." When an employer advises you to consult with an attorney, and further requires that by way of your signature to your agreement that you are attesting that you've read and understand the agreement, consulted with an attorney, and are knowingly and voluntarily signing the agreement, the effect is to protect the employer from employees later alleging that they did not knowingly waive certain rights or they didn't understand what they were signing.

Of further significance is that a severance agreement will likely also have a completeness of agreement provision, which includes that the severance agreement sets forth the complete agreement between the parties, and that by signing the agreement, the employee has not relied upon any representations or statements not written into the agreement that were made by the employer with regard to the agreement. In other words, if something is not written into the agreement, it essentially does not exist in the legal world. It cannot be overemphasized that one word can change the entire meaning of an agreement, and any language included in a severance agreement should be reviewed and drafted by a skilled attorney who understands the language necessary to be included, and who can accurately and adequately advise you of the impact of you signing a severance agreement. The words written into the severance agreement are what govern the agreement at issue and determine what the agreement means under the law.

Although an employer may tell you that no revisions will be made to the severance agreement, and that it is a "take it or leave it" offer of severance pay, it may be possible to negotiate terms (and we've regularly negotiated terms of severance agreements for our clients at DI Law Group). If handled properly, it is possible for you to proceed with the severance agreement and still retain you right to pursue your disability claim under your group disability benefit plan offered to you as a benefit of your employment by your employer (who you are now releasing from any and every claim under the severance agreement). It is particularly compelling when an employer includes the language that requires you to attest that you have consulted with an attorney in order to enter into the severance agreement, but then turns around and alleges that the terms of the severance agreement are non-negotiable. A knowledgeable attorney is best equipped to advise you and your employer as to the significance of the inclusion of such language, and the significance of your ability to be involved in the negotiation process surrounding the terms of the severance agreement where such a provision (and other legally significant provisions) are required by the employer in the severance agreement.

It is important to note that this is not the only provision in the severance agreement, and a severance agreement contains many provisions of concern. Nor is the only impact of the provision discussed in this bog a potential waiver of your rights to your disability benefit claim. The focus of this blog entry is a narrow discussion regarding the potential impact of a severance agreement on your disability benefit claim under your employer's disability benefit plan offered to you as a benefit of your employment.

If your employer has offered you a severance package or agreement, and you are uncertain whether you will be waiving your rights to pursue your disability claim, please contact one of our skilled attorneys for a free consultation at www.dilawgroup.com before you sign anything in regard to the severance agreement presented to you.

At DI Law Group, we do not allow our clients to attend an in-person or telephone interview without our presence. We fully prepare our clients for what they will face prior to the interview; limit the interviewer's ability to ask ambiguous and unfair questions; clarify a response where necessary; and make sure all essential and relevant information is conveyed during the interview. Additionally, because we are familiar with insurance company denial tactics   and have attended hundreds of field interviews with our clients, we are able to determine the red flag issues and provide clarification and correct information. Recently we were hired by an individual who for months had been sending information to the insurance company in support of her claim. Despite clear statements from her doctor that she had significant vision loss and was considered legally blind, the insurance company continued to question her inability to work as a pharmacist. When four months into the claim she was told that a field interviewer would be coming to her home to speak with her, she hired DI Law Group to get her claim resolved. The first thing we did was advise the carrier that one of our attorneys would attend the field interview with our client and that the interview could not take place in her home. During the interview, there were numerous questions about her tax returns, activities involving her son, and her medical treatment. Additionally, the interviewer frequently offered her a response to his questions in an attempt to elicit misrepresentations and ambiguous responses that could be misconstrued by the carrier. Our attorney clarified many of our client's responses to make sure the information was accurately conveyed to the insurance company and insisted that the interviewer explain the reason behind some of his dubious questions. It ultimately became clear that the insurance company questioned our client's disability - even going so far as to suggest that she did not have vision loss, and that she could return to her occupation but preferred to take care of her son and live with her parents (with whom she was forced to live because she could no longer afford her home without an income or her disability benefits).

We subsequently provided indisputable evidence of her disability, personal statements from family and friends and threatened a law suit if the claim was not immediately approved and a check sent to our client for all benefits owed to date. Within the week her claim was approved and benefits paid. Without our involvement it is quite likely that the claim review process would have dragged on for several more months and many of her responses (such as, "the one upside to not being able to work is the opportunity to spend more time with my son") would have been misconstrued and the basis for a claim denial.

If you are considering filing a claim for disability insurance benefits, currently in the process of a claim review or have had your disability benefits denied, please contact us for a free consultation. You can reach us toll free at (888) 644-2644 or through our website www.dilawgroup.com