When to file an ERISA long-term disability claim

September 19, 2022 | J. Price McNamara
When to file an ERISA long-term disability claim
When to file an ERISA long-term disability claim

There are different deadlines for filing an ERISA long-term disability claim. You will need to review your insurance policy to determine when to file a claim. With long-term disability claims, you will need to undergo a waiting period. Typically the period is three to six months, but it can depend on the insurance carrier and policy. Once the period ends, you can officially begin a claim. However, you should not wait long to take legal action and speak with a local ERISA long-term disability lawyer. The most daunting task of the disability process is obtaining medical documentation. It is vital for your claim and will determine whether your lawsuit will be approved or denied. Once your claim is approved, you will continue to provide medical documents to the insurance company while you receive benefits. You will need to continue to provide these documents because the insurance company wants to ensure they are making payments to someone who continues to have a disability and not to someone who is improving. The insurance company is always looking out for their bottom dollar, and they do not care about your well-being, which is why you need legal protection.

Qualifying conditions

When to file an ERISA long-term disability claimSuffering from a disability makes providing financially for your loved ones challenging. Instead of the caregiver, you may now be the person who needs care. Some employers offer short-term disability benefits. Additionally, you can also purchase private long-term disability insurance. In either case, you can tap into these disability benefits to help you adjust to your new life. There are many conditions, illnesses, and disabilities that qualify for LTD. Some are more common than others, and a few examples are:
  • Breast cancer
  • Lung cancer
  • Lymphoma
  • Lupus
  • Multiple sclerosis
  • Type 1 Diabetes
  • Stroke
  • Epilepsy
  • Migraines asthma
  • Depression
  • Anxiety
  • Bipolar disorder
  • post-traumatic stress disorder
  • Kidney disease
  • ALS
  • Huntington’s disease
  • Parkinson’s disease
Many other diseases and conditions qualify, like chronic pain, chronic fatigue, blindness, deafness, and hearing loss. You must look at your policy and coverage to know which conditions qualify for long-term disability. Some conditions overlap, which can make the claim process contentious. Having a qualifying condition is not enough to get disability benefits. You must also provide proof of the condition. Insurance companies often pay for a private investigator to surveil you before approving your claim. The insurance carrier will do this when you are claiming a disability that does not require a scan like an MRI or X-ray to diagnose. The investigator might watch you at home, on errands, and even to doctor’s appointments. They might film you anytime you are outside of your home. Even carrying the groceries inside can be enough for the private investigator to take a picture, and your claim is over. You need a disability attorney to advise you on what to do - and not to do - during the process to protect your claim.

The Impact of ERISA on LTD claims

Your initial long-term disability claim is essential because the judge will review this initial case file if you need to go to court. You might have difficulty winning the appeal if you made a mistake during the initial claim. Hire a disability claim lawyer from the beginning, so there are no errors or missed deadlines. The initial claim must be strong, so you can win during an appeal or in court even if you face a denial. Under ERISA, you have certain rights:
  • You must receive notice of your benefits
  • You must receive information on how to file a claim
  • The insurance company has specific deadlines to approve or deny the claim
  • The employer cannot fire you for filing a short-term or long-term disability claim
  • The employer cannot discriminate against you
ERISA provides these rights but often comes into play when you receive a claim denial. You have additional protection under ERISA after a claim denial:
  • You must get a written notice of your denial
  • You can request and obtain copies of your records free of charge
  • You Have the right to appeal, typically within 180 days.
  • An appeal decision must be made quickly, within 45 days of receipt.
  • After an appeal denial, you have the right to a second appeal, depending on your policy.
ERISA purports to protect employees regarding benefits, but it can also make your disability claim more challenging.

New rules for ERISA insurance providers

In 2018, the rules for ERISA were updated for short and long-term disability insurance. The changes aim to help employees who suffer a disability. Some practices will sound the same, while others are new. Insurance providers will:
  • Use impartial decision-makers
  • Separate employment decisions
  • Explain the denial standard for LTD
  • Describe in detail the reason for a claim denial
  • Describe in detail why they disagree with Social Security Administration and your doctor’s decisions regarding your condition
  • Include internal rules and standards
  • Give you access to your file without charge before a final decision.
  • Provide access to the scientific basis for decisions
  • Provide notice of new evidence regarding a claim denial on appeal
  • Complete the appeals process within 45 days with only one 45-day extension
  • Provide notices in other languages if the local population consists of 10 percent or more non-English speakers
The rule changes are so that employees obtain more information about their claim denial than before. For more information, please contact us!


Benefits denials

Not all claims will end in approval for various reasons. Luckily, you will have options after a denial. You can have a mountain of medical documents and still get a rejection. Remember, the insurance company must provide a reason for the refusal. Depending on the basis, you will have different appeal options. The insurance company has doctors, nurses, and therapists who will review the documentation you provide. If one of these individuals disagrees with the medical documentation you provide, your claim can end in denial. Under ERISA, you can file an appeal. The claim will typically resolve during an appeal, but if it does not, there are other legal options you can consider to get your ERISA LTD claim approved. However, you will need the help of an ERISA long-term disability attorney. Some of the reasons you receive a denial might be that your policy does not cover your condition or that the insurance company does not believe you have a disability. ERISA does not cover all disability insurance plans, so it is vital to know if yours is covered. The process of filing a claim is full of different technicalities that only hinder your ability to obtain essential benefits. Among the reasons you can face a denial are:
  • Pre-existing illness is not grounds for disability
  • 24-month mental nervous limitation
  • Social media and online presence
  • Self-reported illness
  • Private investigator footage and videos
  • Missed deadlines
  • The ability to deny a short-term disability claim to prevent a continuance of long-term disability
You should not miss deadlines and never file an appeal for a claim independently without the help of a disability claim lawyer.

ERISA pre-litigation and litigation

While ERISA laws make it possible to file a lawsuit, there are many steps before you reach that point. You will need to exhaust every possible avenue before filing a lawsuit. That aspect is not new, as this happens in all legal cases. You will need to file an LTD claim within all deadlines. The insurance carrier will have 105 days to decide upon the date of receipt. If you receive an LTD denial, you must appeal within 180 days, and the appeal decision must come within 45 days, barring an extension. Additional procedures during pre-litigation are reasonable procedures described in the summary plan description. There cannot be any undue burden from the insurance carrier for processing your claim and obtaining relevant documentation. If the carrier does not provide documents within 30 days, the claimant can seek penalties of $110 for each day the insurance carrier does not deliver the copies. A claimant can file an adverse claim determination. Once all of these pre-litigation procedures are complete, you can begin to seek litigation, also known as a judicial review for these cases. There will be no jury trial, and a judge will review the written record and both sides of the case. The judge will then issue a decision. There is limited discovery since there are not many changes that you can make or evidence that can be present once a claim appeal is complete. The review process seems very simple, but there are several guidelines that a judge will need to adhere to when reviewing a claim. The court must use the de novo standard of review. There are a few exceptions to this requirement. Insurance companies have taken advantage of these exceptions and begun adding verbiage that protects them into their policies. Typically, however, judges will argue a conflict of interest, so you will still get a fair hearing. Additionally, you must have a local disability claim lawyer who can guide you through the process and ensure you obtain the long-term disability benefits you deserve during this time. Depending on your circumstances, you can file a lawsuit against the employer or the plan provider. You may even recover back pay and interest from a successful claim. ​

Things to remember

The best tip when filing an LTD claim is to be open and honest with your doctor. Your medical records and their opinion are vital to the outcome of your claim. You must let them know that you are considering a disability claim. Once you file, the doctor will receive various forms; they do not need to consult with you on what they fill out. You will need to stay in communication with them and check your medical records to ensure you have adequate information for a successful claim. Once the medical portion of the claim is complete, you cannot add any other forms to it. Medical documentation is vital if you need to file an appeal in federal court. There are a lot of intricacies with these claims, and some topics are overlooked, such as taxes and SSDI. While they will not hinder your ability to file a claim, they can impact how the insurance carrier handles your claim and what you will need to do after. Disability benefits are taxable, which means you will see taxes withheld from your monthly payments. Individual plans are not taxable because premiums come from after-tax dollars in contrast to group policies that get paid with pre-tax dollars. When you do receive an LTD approval, you will likely also need to file for Social Security Disability Insurance. While you think this is a benefit, it is a tactic that insurance carriers use to offset payments and lower claims. They see such a benefit that they will even hire a lawyer for you. When you receive SSDI payments, the employer-provided disability payments are lower, considering how much you get from SSDI. Another caveat of an LTD approval is that you will only receive a percentage of your former salary, not the entire amount. Short-term disability will provide 80 percent of your wages, and long-term will provide 60 percent, but it will vary by the policy. You can review your policy summary plan to see how much you will recover. Long-term disability benefits are not lifelong. Some policies offer benefits until you reach retirement age, while others will only pay for a specific number of years. If the policy pays for some years, it will likely be five or ten years. Mental and nervous disorders have limitations on payments. The timeline is usually only 24 months for conditions like depression and chronic fatigue syndrome.

Hiring a disability lawyer is vital

J.Price McNamara
Long-term disability attorney, J.Price McNamara
First and foremost, you must stay organized and communicative throughout the process. You will need substantial documentation to prove your claim and garner a favorable result. While you think your employer and doctor are on your side, they can drop the ball. Ensure they are doing their part and keep copies of everything. Most importantly, hiring a long-term disability lawyer is essential to your claim because they will stand up for your case while the insurance company tries to jeopardize your claim. Contact a trusted law firm for a Free Denial Review to learn more about how an attorney can help you. When you are in for a long fight, you need an experienced long-term disability attorney to spearhead your counterattack. You need legal help from the beginning of the process or immediately after learning of a denial.
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J. Price McNamara


Losing my own brother, then my father and sister after long, disabling illnesses just a few months apart drove a career change for me. Before that experience, I never truly understood the place you’re in. I never understood the dramatic impact that receiving (or not receiving) the disability and life insurance benefits you paid for and counted on can have on your life especially when you need to focus on family and healing. What I experienced with my own family now drives the way I view my clients and my work, and I will never forget it!

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