ERISA is Evil, part 2 Ready to File

For those who are readers of iPain Living Magazine we covered what ERISA law is and why it is evil in the Fall 2019 edition article ERISA Is Evil; The current state of the Employee Retirement Income Security Act of 1974 and How It Effects Long-term Disability Claims by Lawyer Andrew Kantor; Kantor & Kantor. This is part 2 of 4.

Are you ready to file your Long Term Disability Claim?

Once you’ve reviewed your policy and are ready to file, there are several critical steps we recommend taking before you file your claim.

Obtain your medical records from ALL treating providers, even if not disability related.

When you file your claim, the insurer will request medical records from all physicians you’ve named on the claim forms, as well as records from any physician referenced within those records. The medical records are the most important aspect of your claim. Knowing what is contained within them will give you a much clearer picture of what your disability claim will look like to the insurer.

If there are obvious inaccuracies with your records, you are entitled to have those records corrected by your physician under HIPAA. If the records don’t encapsulate your disability the way you’d like, or even worse questions your claim altogether, you may want to consider omitting that doctor from the forms, speaking to the doctor directly, and/or consulting with an attorney to discuss your concerns.

If you are filing a mental health-based claim, insurers will often accept a treatment summary letter in lieu of your complete therapy/psychiatry records. If your mental health provider (usually therapists) does not feel comfortable giving you a copy of the records, ask them to draft a treatment summary that they would provide to the insurer if asked.

Obtain and Confirm Support from Your Treating Physician(s)

Once you have obtained all of your medical records, speak to at least one physician in order to confirm not only support of your claim, but a willingness to fill out forms on your behalf, both now and in the future. Without support from a treating physician, your claim will not get off the ground. If you are disabled from a condition which requires a specialist, you want the specialist signing off on the disability. If they cannot, or will not, you should defer to your primary care physician. If you cannot obtain support from any of your treating doctors because they refuse to fill out forms, and the medical records remain supportive, an attorney can help you obtain an independent report certifying your disability.

Obtain Additional Evidence, If You Want.

There are plenty of other pieces of evidence you can submit as a part of your initial claim. While many people choose to wait to invest money and energy into additional evidence until the initial claim is denied, claimants can submit personal declarations, statement from friends and family, journals detailing symptoms throughout periods of time, and even additional independent medical testing which can support the existence of disabling limitations.

However, it isn’t a necessity before the claim is denied. Further, once the claim is denied, you have a basis on which to build your appeal and focus on the best evidence in light of the position the insurer has taken. For example, if the insurer is arguing that your cognitive impairments exist but are caused by depression rather than a brain injury, there is no reason for you to spend thousands of dollars on a neuro-psychological examination confirming the existence of cognitive impairments. The insurer isn’t disputing the existence of the impairments. Rather, you’d want to focus on getting letters from your providers explaining why the cognitive impairments have a physical cause, and potentially a neuro-psychological exam geared toward identifying the source of the impairment, rather than the extent.

Waiting to submit extra evidence during the initial claim has another significant advantage.  If you choose to hire a lawyer to handle the appeal, that lawyer can tailor the evidence for you, and avoid omitting extraneous or even including harmful information.