The best way for a physician to win an ERISA disability claim or appeal is to build the administrative record evidence far beyond the relevant medical records and argument, and beginning without delay. Without following a set process for doing so, it’s easy to forget to include something important or to lose direction along the way.
So where to start?
Win My Benefits Process
The process we follow when representing our physician clients (we call it our Win My Benefits Process), described below, will help guide you to develop and build the nuts and bolts of a strong, well-supported administrative appeal.
1. Calendar your appeal deadline
The law is unforgiving on this. Miss your appeal deadline and your claim is over.
2. Analyze the insurance company’s denial letters
We analyze the reasons given by the insurance company for denying the physician’s claim. This serves as our primary roadmap for what and where our focus needs to be.
3. Analyze the insurance company’s claim file or administrative record
The insurance company is required to provide upon written request, and free of charge, its entire claim file, also commonly called its administrative record. It’s commonly over a thousand pages long. You need to review every page. We always find information there helpful to the case. The file consists of all medical and other evidence the insurer gathered through authorizations you signed, through private investigation, including surveillance video, and the insurance company’s own record review consulting physicians, vocational rehabilitation and other expert opinions and reports. The insurance company is required to include all evidence generated in connection with the claim whether or not the insurance company relied upon it to support the denial.
Much more is there than what is mentioned in your insurance company’s denial letters. We often find evidence that directly contradicts the insurance company’s denial, or a lack of evidence to support a reasons it gave to support a denial.
We have even found evidence that the insurance company’s own expert directly contradicted a denial of our physician client’s benefits. In fact, the court found in one client’s case that the insurance company illegally withheld from my client its own expert’s report, which directly contradicted the denial of benefits. Without reviewing every page of that 1000 plus page record to find the buried report, we would not have found the report, and our client would not have received the benefits she needed and deserved.
(You can Google White v. Life Insurance Company of North America (CIGNA), 892 F.3d 762 (5th Cir. 2018), as revised (Jun 14, 2018) to read the full court opinion. If interested, you can also listen to CIGNA counsel’s and my oral arguments, and the court’s vocal suspicions at winmybenefits.com. You might find it an eye-opener on how far an insurance company will go to avoid a big payout.)
You also need to determine what supportive medical or other available evidence you deem important is not in the record, and include any such evidence as part of your appeal. That way it becomes part of the administrative record which can later be considered by the court if the claim is denied on administrative appeal.
4. Analyze the long-term disability insurance policy, plan and summary plan description
You can request these critical documents directly from the insurance company or the Plan Administrator.
Look at the policy definition of disability. The definition can vary from policy to policy. (See discussion of the different types of “Disability” definitions above.) This definition drives what the physician must prove to be considered disabled under the policy. Most policies have definitions of “Disability” similar to one of the four variations outlined above.
You should also compare the provisions of all other ERISA Plan Documents and Summary Plan Description with those of the insurance policy. Critical definitions or other provisions may differ among the documents to your benefit. We regularly find provisions that directly contradict each other, or provisions that contradict the insurance company’s stated reasons for denying a physician’s claim.
Pay careful attention to the effective dates of the Plan Documents and policy. We sometimes find that the insurance company wrongfully denies a claim based on policy language of an older or newer version of the policy that doesn’t even apply to your case. Or, we may find that the insurance company is seeking to use an unfavorable policy amendment that doesn’t apply to the case at hand to wrongfully deny the claim, or that there is a favorable and policy amendment in effect that the insurance company “overlooked” to deny a claim.
In some cases we find that a provision the insurance company is using to deny a claim is ambiguous, or contradicted by other provisions, making the denial legally unenforceable.
The entire insurance policy and all Plan Documents policy should be read carefully to determine every provision that may undermine the insurance company’s claim denial in any of these ways.
5. List the foundational information supportive of your claim
We like to prepare a formal sworn client affidavit for clients to sign for submission with our disability claims. The content of the finalized statement or affidavit will come from the following.
List all details about your educational background, former work history, physician specialty, and specific physical and mental occupational duties when you became disabled and the nature of the disability. List all physical and mental requirements to perform your specialty, including those required for occasional emergency situations that may arise.
Now list in as much detail as possible exactly what physical and mental limitations you have that hinder your ability to carry out the specified duties of your physician specialty. Describe in detail the nature, intensity, frequency and duration of all pain, physical restrictions and limitations, all mental or physical effects of any prescribed medication, how all of these things affect fatigue, physical functioning, concentration, memory, the need for breaks, rest, sitting or lying down, etc. The more detail the better.
Get your official written job description from your employer’s human resources department and include in your statement or affidavit comments on whether the job in actual practice is different, and if so, how. If the insurance company claim file contains surveillance, it’s imperative that you comment on that as well and include it in your statement or affidavit.
Organize the information in the preceding three paragraphs into the signed affidavit or statement to submit with your appeal.
Next, explore what family members, coworkers or friends can provide affidavits describing their observations of your mental or physical manifestations of disability. Have them prepare appropriate affidavits or statements to sign. They should note their date of birth and relationship to you, and why they have had enough contact with you to accurately comment on your disability. They can say that they’ve read your statement or affidavit and note that it’s consistent with their observations of you, and add any helpful details or examples that come to mind.
6. Gather and analyze medical records to see how well they support the claim for disability and supplement where needed
Gather, review, study and summarize chronologically the relevant medical records, physician reports, diagnostic studies, etc. Here, look for areas of potential strengths, weaknesses or the absence of evidence needed for claim support. The focus is to determine where you need to build evidence that supports disability as defined in the policy, and to address the reasons the insurance company gives to support its denial of benefits.
When your physicians write their reports, they are not necessarily attempting to cover all information in the kind of detail needed to support a disability claim. They often rely on computer programs when preparing their notes that simply do not have fields concerning the evidence necessary to support a claim. So the support needed may be weak or absent from medical records as normally kept. They often don’t state any opinions specifying physical restrictions in enough detail. The insurance companies then cite “lack of evidence” to support the disability. That evidence may in reality exist, but is just not stated well enough in the records. Insurance companies know this and exploit it. Sometimes the records contain plain errors that hurt the claim. These need correcting.
Wherever you find weaknesses, the absence of important evidence or errors in the medical records, correct the problems using a number of different approaches depending on the case at hand.
For instance, you may need to get detailed input from your treating physicians, as well as other medical experts as needed for the particular case. You may need to ask treating physicians to address certain issues not previously addressed specifically and in detail in a report. You may need to push to have certain medical diagnostic tests run to offer unequivocal proof of the existence of a disabling condition. You may need a physician to address in writing the disabling side effects of prescribed medications not previously addressed. In some cases you may need to retain additional physicians of various specialties to provide an opinion.
We sometime meet face-to-face with treating physicians to determine their opinions on relevant details. We sometimes ask them to write a report addressing whether the physician- claimant’s affidavit (to be attached to the report) is consistent with what the treating physician would expect given the medical condition at hand, or whether any surveillance affects his or her opinion regarding disability. Whatever the weakness or absence of evidence or error in the medical records might be, we do everything we can to correct it.
7. Decide what additional evidence may be helpful
At this point, determine what, if any additional medical or other forms of evidence not forming part of the administrative record might be helpful to support the case. This varies from case to case, but may include a functional capacity evaluation (“FCE”) as evidence of the your physical restrictions, further medical diagnostic studies to provide objective evidence of your disabling medical condition, helpful medical records that were simply missing from the insurance company’s claim file, additional affidavits from you, family members or coworkers regarding any important issues that weren’t addressed in initial affidavits, but came to mind afterward.
An expert vocational rehabilitation evaluation is sometimes warranted to rebut an insurance company’s similar expert’s opinion regarding your ability to perform a certain occupation, or what Dictionary of Occupational Titles occupation best resembles your actual job or specialty, or what items the insurance company’s expert failed to consider.
8. Conduct legal research
We conduct nationwide computer research, combing for judicial opinions factually similar or otherwise supportive of the claim and our arguments. Save these so you can later cite to them and quote portions of them to support your arguments to the insurance company, and later to the court if necessary. You might want to retain an experienced ERISA attorney for at least this portion of your claim-building process.
9. Construct the best argument
Again analyze and dismantle the reasons of given by the insurance company for denying the claim. Do this by using everything helpful you find from all of the above efforts, and assemble it into a concise, impactful argument. It should be a blended argument of your strongest facts, woven together with your strongest legal arguments, citing relevant policy provisions, the administrative record and your new evidence which will now be submitted and become part of that record. It should be constructed much like a legal brief filed in court, tailored to follow the same pattern the court will use analyze the case. The insurance companies know by this that you are fully prepared to file suit in federal court in the event of a denial of your claim on appeal.
10. Final review
Before you submit your administrative appeal argument and supporting evidence to the insurance company (which will ultimately be our argument to the court if they deny the appeal), examine your argument again in detail to determine whether it triggers ideas for any additional evidence which may be supportive.
11. Submit the best argument and await a decision
After you feel that you’ve left no stone unturned, and have crafted your very best arguments in favor of the claim, submit your administrative appeal, along with all supporting documentation that was not already part of the original administrative record, to the insurance company.
The insurance company has 45 days to render a decision, with one 45 day extension which it commonly takes (they must give you proper notice to take the extension) to give you a written decision with reasons.
If the insurance company reverses its denial, great! Make sure they calculate benefits and any offsets accurately and for the full period of back pay owed.
If it doesn’t, your efforts and argument will still be useful in the lawsuit that follows. Be sure to request an updated copy of the administrative record and make sure it includes all of the evidence you submitted. This will help to avoid a later argument in court about the completeness of the administrative record to be considered by the judge.
We Hope You’ve Found This Information Helpful…
If you’ve read this page to conclusion, congratulations! You now understand more than most attorneys do about the process of properly handling a physician’s ERISA disability insurance claim.
If you’d like to talk about the particulars of your anticipated or ongoing claim, I’d welcome the opportunity to get on a call or meet with you in person.
To a just and a successful claim result…