Speaker 1: 0:19

It's Mark here and welcome to the next edition of the Employees Survival Guide. Today we're going to talk about filing and how to file disability claims with your employer's short-term and long-term disability carriers. Under the plan documents. This area of law is covered by what's called the Employee Retirement Income Security Act, an acronym called ERISA, e-r-i-s-a Sometimes a word or a acronym that scares people away, but in reality it's quite simple and I'm going to go through the steps today to explain that process. Approximately, there's 14 different steps you can go through, at least as I gathered my notes today. I'm going to help you work through them on your own and, whether or not you have an attorney, you have the ability to do this and I'm going to show you how to do it. Let's dig into it. How would? At what point in time in your career are you going to file for short-term and long-term disability benefits? Typically when and you can't predict the future some adverse medical event happens, or let's say, you get an accident or have a back injury and you're unable to work and you have to do what you have to replace your income in some way. That's what short-term disability benefits do they provide for? Sometimes 60%, and a good employer will provide 100% replacement for six months of your salary. That's a good deal. If you want to know the value of your employer, check the HR portal and see how much STD benefits do they provide for? 60% or 100%? If it's 100%, it's a nice employer.

Speaker 1: 1:54

Next thing is you also want to consider the story of your case. I work in a world of narrative and stories. People's stories they bring to me. You as well have a story. Something happened to you. I need you to gather up your facts from start to finish. For example, you've been working with an employer for many years, you have performance reviews and then the event happens. Whatever that event is diagnosis of cancer, multiple sclerosis diagnosis, inability to work, car accident what have you?

Speaker 1: 2:28

You have to write the story because when you file your claim for disability benefits, it's really important to provide them with a detailed, sworn written affidavit about what you went through, because somebody has to tell the story about what you're going through in terms of your ability to work or not work, your functional capacity. I know that sounds maybe not intuitive to you, but in reality, you have to share your facts with the employer's plan carrier Typically, it's an insurance carrier and you want to provide them as much information as possible. I call the kitchen sink approach to ERISA, because you can include just about anything you ever wanted to include by example. I take chronic fatigue, for example, c-fids. I used to do them years and years ago and we used to include every research study that we can find and put it into the claim file just to oversaturate the employer with the objective evidence and support of what's chronic fatigue syndrome by putting in everything you can think of the medical documents, et cetera. It supports your story.

Speaker 1: 3:39

Then you have to correlate and craft and tell your story through your narrative of how all this information pertains to you and your inability to work. Crafting the narrative is a crucial part of your story. Second thing is number one is gather your facts and write up your story as your narrative. Number two document your disability with your medical providers and also with your employer. When I say document, go to your providers and in your primary position and then also get your secondary and third reviews by experts in the areas to which maybe it's an autoimmune disease you want to get documented. You're creating facts supportive of your disability which you would then take back medical claim files from each doctor and submit it in your claim file to the short-term disability carrier because they're going to ask for it. Getting to get to your medical providers to provide diagnosis is one thing, but getting them to write letters on your behalf saying that you are not able to work because of the disability, stating why you're not able to work Maybe you have lifting restrictions, maybe you have inability to get out of bed, maybe you have just actual treatments for whatever the conditions you're under. Getting the medical documentation with your medical providers, submitting it to the insurance carrier when you file your application, but also documenting that back to your employer. You'd have to actually write a letter from your physician to your pre-employer saying I have a disability, I need to go out and unlock the disability or short-term disability. The reason why you do that is because you need to document under the state and federal laws sometimes city law to substantiate the fact you have a disability. No one can know it unless you tell them you have it. That's the third point is protecting yourself with other disability laws, such as the ADA for the use of reasonable accommodations and then the Femma Medical Leave Act, when I speak about applying for short-term disability benefits at that time of your life.

Speaker 1: 5:46

When you're going out and making that application, you have several different statutes covering you at one time to protect you. The ADA, which is the Americans Disabilities Act, is designed to protect you against discrimination. It also provides a vehicle for discussion about reasonable accommodations. Meaning I can't work, I have a disability, I need to request reasonable accommodation. Well, guess what? The short-term disability is a reasonable accommodation. It's provided by your employer because you have a good employer, they care, they know people get sick.

Speaker 1: 6:16

The FMLA is also a statute that covers you. It does something very different. It protects your job for up to 12 weeks and the employer can't fire you. Okay, so you can come back within 12 weeks. But sometimes people can't come back within 12 weeks and that they're made on disability, short-term disability, longer Short-term disability itself lasts, on almost all these policies and plans, six months, so that's longer than 12 weeks. So how do you deal with the overlap there? And you're going to have to figure out at some juncture, when the FMLA ceases after 12 weeks three months that you have to decide for yourself am I able to come back to work or not. You'll know this because your body will tell you or you'll know your limitations.

Speaker 1: 7:12

Don't make this. One mistake that I see a lot is having your doctors tell you that you're not able to return to work. They're not the functional capacity expert vocational experts, they're just physicians. And some people make the mistake of allowing the physician to make decisions about their income. Returning to work is returning to work and full income or your job. So doctors are doctors. They're not expert medical. I'm sorry, they're not expert job experts and vocational experts to tell you. So don't make that mistake. Work with your physician and have your physician support your claim for benefit and also make your own assessment of whether you're able to return to work. The Feminine Medical Evac, the ADA and sort of disability have a built-in procedure where you can actually experiment with returning to work part time to see if it's viable for you to return to work. So explore that.

Speaker 1: 8:08

Read the plan document. I'm starting to be a lawyer here, but I have to read the plan document and tell clients what's happening. So why can't you read it? So it's in your HR portal. It's right in front of you. You can actually read it. It says all the things in plain English. It's written that way so that I can understand it and you can understand it about what happens. So if there's a partial return to work, it's in there. They would encourage you to return to work if possible. They want you to get better. That's the presumption, okay, so I have different feelings about that according to different fact patterns, because I think employers want to get sick people out, but not all employers. I mean employers that will pay for shorter disability plans, longer disability plans. They do care and they care about their retention of their employees. So I'll get I don't want to down a tangent right there, but so assessing your laws to protect yourself during this process at stage three, it's really important and I know I said a lot about the ADA and accommodations and Femma-Mechelivac, but they're there for you to protect yourself.

Speaker 1: 9:16

And the next thing I have to do step four here is obtain company applications for both the short-term disability plan application and also the long-term disability. Why both at the same time? Because you don't know if you're going to be going on to long-term disability. I tell the clients to request both applications, fill them both out. I even tell them to fill them out at the same time and submit them, so that way we get that off the deck. Whether or not you use the L2D application or not. You're just trying to buy insurance for the future of what if, because you don't know what the what if. You're just dealing with the here and now of a disability and how I'm going to get through this. And so fill out the company applications. They're quite lengthy, but they're going to ask you in essence, are you able to work or not? And they ask you questions related to your functional capacity, to the minute detail of things about daily activities. Fill all the information out, don't lie. Just fill out the best you can in terms of what's there. And then they're also going to ask you to get supporting medical information as well. It's self-explanatory in the application itself.

Speaker 1: 10:26

When you submit step five of the process, you submit your application with detailed, sworn narrative. I talked about the medical files you've gathered and supported your STD claim and you submit it to the plan administrator. Who's the plan administrator? In the Shorten Disability Plan document you will see at the very end of it, probably the last two pages, the administrative section. It tells you who the plan administrator is and it tells you who the claims administrator is. There are actually two people or two entities. Shorten Disability Plans are legal entities unto themselves, so you understand that there's a plan administrator, which typically is the plan sponsor, the employer, the HR department and feel free to contact the HR department about it. Then there is a. Sometimes the plan administrators will hire, contract with insurance carriers to provide the claims administration of the plan benefit to you. Sometimes they confuse you as well with even doing FMLA benefits. It's just an insurance racket. They're just trying to make a lot of money to service these companies.

Speaker 1: 11:30

So you submit your detailed, sworn narrative, the story about your case, your medical files, and then you have to step six, wait 45 days. Well, seems like a long time, but that's what ERISA, the statute, requires. The plan administrator, claims administrator, has 45 days review your claim. Do they do it faster? Maybe, sure they do, but they also have the ability to request an additional 45 days. So a total of 90 days to review your application for short-term disability. And it may seem a long time. Well, there's no income coming in, you're sweating it out and you have to wait. Just wait, that's all there is. So you have the ability and I'll say this later on to examine the issue of what's called social security disability benefits. If you are totally disabled and you're not going to return to work. You might want to apply for social security disability income benefits from the federal government earlier in the process, even during the short-term disability claim process After the 90 days or 45 to 90 days date expires Actually, I apologize.

Speaker 1: 12:44

Step seven you have to answer all their questions provided by the carrier to you to support your case, because they'll ask you lots of questions and follow after you submitted your application. I'm sorry, I jumped around my notes here, so they're going to ask for additional information, maybe from your doctors after they submitted information. Just go through that process and give them everything they request. And if you need to go out onto the web and find NIH, national Institutes of Health research studies, you can go, get them and include them in part of your claim. Again, kitchen sink approach everything that supports your case, let's say a pharmaelgia or multiple sclerosis. You have to get these research studies to document what it is you have.

Speaker 1: 13:28

But I will tell you as a side note, there are a category of disabilities that are self-evident, believe it or not. Fibromyalgia and chronic fatigue are now recognized disabilities with the federal government and insurance carriers. So, multiple sclerosis there's a variety of diseases, disabilities that are self-evident, that basically the insurance carriers are not going to challenge you. To a large extent they may take a stab at you if you are unrepresented by counsel. That's a knee-jerk reaction by insurance carriers and it was a cheap shot, but it happens a lot. Be aware of that issue. So there are a category of disabilities that will fly through the SDD process that I see in my end that I usually don't have a problem with.

Speaker 1: 14:59

I can say that one issue I have seen where employers or plan administrators insurance carriers on short-term disability challenge people is mental health. Unfortunately, the stigma is self-perpetuating among the insurance industry itself about the psychosomatic nature of mental health. But you and I also know that mental health is having a new birth in terms of awareness in our culture, which is great. But nonetheless in the long-term disability area they get challenged by the insurance carriers to determine whether you have it or not. So it's really important in the mental health area to document bipolar or chronic depression, major depression and anxiety type of disabilities with your psychologists and psychiatrists.

Speaker 1: 15:54

Step eight I call it Decision Day on the short-term disability. Read the decision when you get it. If it says approved, it's going to say very little about why it was approved. Everything goes for a long-term disability. When you get the decision it's going to say approved. They don't tell you. They don't tell you squat about the why. They tell you if it's denied. They tell you a lot about it. So what happens? If it's approved, then you have six months of benefits, either at 60% or 100% of your salary, and at that juncture if not even before you begin working on your long-term disability application. Because if you haven't filed it by this point that's why I say filed in the beginning and get it off with, it may be to a different carrier altogether. You may not have the same carrier and you're basically going to redo the same process over again Same medical information, same narrative information. Now you have the benefit of one thing the short-term disability was approved. Well, it was approved on your, basically, disability from your own occupation, the job you are doing before you went out on disability. So that helps you. You have a carrier.

Speaker 1: 17:03

Part of the plan the employer's plans say that you were approved for disability based upon your medical evidence. That's one step closer to getting the approval for long-term disability. There's the same standards that apply for short-term disability as they apply for standards for long-term disability, meaning that you have to be disabled under the plan definition of disability from your own occupation for the first, I think, first two years and then any occupation after two years, depending upon what the definition of disability ends in the plan. So read the plan, don't sit there and say I don't know what this is. It's plain language. It's pretty simple. It's set forth in categories of understanding under the plan document. It's not written in verbose, legalese type of nonsense that I have to read all the time, because Congress mandated that the plans must be written in a way to be understood by just everyone, not just lawyers.

Speaker 1: 18:04

So, step nine we're going to review the FMLA-ADA job accommodation process because you're at the short-term disability stage, which is now approved. But, as I said before, under step three, looking for the protections by federal statutes and state statutes at this juncture. At step nine, you're at the FMLA end date and ADA overlap into unpaid leave of absence If the STD claim was not approved. If it was approved, then you'll continue to get benefits for the duration of the short-term disability, which is six months. But you also want to take a look at job accommodations. That which is really simple at this stage. If you're on claim for a short-term disability, you're going to remain on claim and you not really have to work too much with your employer about accommodation, but recognize that the ADA is there. You're on an accommodation, short-term disability, a leave of absence, a paid medical paid disability leave of absence. So figure out where you are in your process and monitor it. Make sure that you're in the employer's acting in good faith with you. At the end of the FMLA period of time, I want you to ensure that you have the understanding that your job is no longer protected and you basically go off of FMLA so that statute goes away and you're left with just the ADA accommodation, leave of absence, short-term disability.

Speaker 1: 19:32

At that point, when the short-term disability benefits ends, you should be teed up for your application for long-term disabilities already in the pipeline, with the insurance care being reviewed, the overlap and you shouldn't have any break in disability benefits if you coordinate them. That's why I said start your disability application for short-term and long-term at the same time. They may confuse the insurance carers and the planning administrator, but we don't really care about them the fact that you file it, they have to deal with it. They may respond by saying well, we have to wait until your short-term disability is approved or denied for us that's true. It doesn't mean they can't review your L2D benefit or because you already filed it and you can begin to shove into the pipeline everything you put into your short-term disability. You put into your long-term disability.

Speaker 1: 20:22

Let's see the step 10 at the L2D application contents. It's everything you did in your short-term disability your narrative, your medical documentation, the decision of approving or denying the short-term disability benefits generally. It's approved about 95% of the time, in my opinion. Then you answer all questions regarding the employer, the planning administrator, the insurance carrier, about the ability to work, your functional capacity. Then you would get documentation from your I say this a vocational expert. If you type in a search word for Google for vocational experts in your area let's say vocational experts in, let's say, connecticut you would uncover people who actually assess jobs and your medical information to determine do you have the functional capacity to work? They're out there because they're out there making a living, real people doing this job, because people have issues related to Workforce Comp and there's vocational people out there to tell us the functional capacity that you have. It's very important you have that because the insurance carrier is not going to they're going to have somebody vocationally internally assess you, but they're not going to give you any type of reports. If you give them a report ahead of time of functional capacity that you're unable to do your job, that's going to help your claim get approved.

Speaker 1: 21:50

Any additional medical information you can get I mean you can't stop providing enough medical information from experts to support you Two, three, four second opinions. It really matters to provide those letters and those reviews. Go through the effort. You're not going to get enough health insurance, so why not use it to your benefit? Stay within plan, of course. If you even have to go out of plan to get something that is really valuable in terms of somebody's expert's opinion, do that and document that part of the claim file. If you need to get research studies to support your cause, include that in your application.

Speaker 1: 22:28

Let me say something. When you apply for short-term and long-term disability benefits, you're building an official claim record of your application. No one can tell you what you can and cannot put into it. You can put an affidavit by your family members about what they saw and experiencing with you. You can just put just about anything that's relevant material to supporting your claim. It's open-ended. There's no real rules defining what you can and cannot put into it. I encourage you to put a lot of information.

Speaker 1: 23:00

Here's another thing there's so much available information on the web and I'll actually make a stab at this. If you even Google something about, let's say, it's an insurance carrier or it's a company, and basically type in litigation with long-term disability, against whatever the heart rate, you would come up with case decisions that you can read that maybe support, and maybe you type in the phrase multiple sclerosis in the search string. You would come up with case decisions that you can print if they're favorable and include. If they're in the last couple of years and there's something that's similar to what's happening in your storyline, you can include that case decision in the appeal record. I'm sorry, in the application for the L2D benefit. There's a lot of information you can include. I know we're in the era of the AI development issue, but be careful here that searching using an AI chatbot or device on Google or something, be careful what it's going to include, because it may include information that is not real or not material to your own situation. But do the research to find out what is it picking up, because it may provide hints of information you can scour to support more information.

Speaker 1: 24:19

Everybody has a claim out there for disability benefits at one point time another. These cases are out there publicly. Whenever I file a federal case in court, the case gets live. The complaint is published. We can see it. If you do do diligence, you can search cases to find other people who've had the same problem with the same insurance carrier Long time ago, maybe last 10 years ago, maybe even longer now doing this too long. Sedgwick claims management was the noted target amongst my colleagues not to target under ERISA for basically just bad insurance practices. The courts took notice and the plaintiffs ERISA disability bar had made great efforts to gaslight their activities to a large extent. There's a lot of material out there about Sedgwick claims management.

Speaker 1: 25:18

Let's get to step 11, the LTD decision day, and it's when you get your denial of benefits or you get your approval. I'll start with the approval first. The approval letter is going to be short. It's going to say you're approved. It's not going to provide a rationale to you. Erisa does not require the insurance carrier to provide the rationale. Who cares? The fact you got your claim approved, that's what matters. If your claim is approved, then you're in the pocket for a period of time getting coverage and take a sigh of relief Not just yet, because the plans typically have a recertification, sometimes annual, definitely annually, sometimes even monthly.

Speaker 1: 26:05

I haven't seen this in a while. They used to do it quarterly, but generally annually they'll recertify the claim benefit and ask you to go through a process and get your doctor to sign off. That seems rational, because they want to have updated information you may have improved and they have a right to because they're paying you. Go along with the process. That information regarding annual certification is, in fact, written in the plan documents. Read it, be aware of it, don't be naive about it.

Speaker 1: 26:34

If the claim is denied this is where the next stage of the discussion between step 11 and step 14, when you file your case in federal court God forbid you ever do that. This is where the bulk of information I want you to understand and it's really where the hard work of your first part of the case of building your medical file and your narrative, pays off. If the claim is denied and you did everything you could to support yourself in the LPD benefit process by supporting yourself, saying you were not able to work in your own occupation, meaning your job you had a functional capacity review saying that supports you. Unable to do it, the employer, the plaint administrator and the insurance carer in the decision of denial has to state specifically this is very, very important. You read this All right, listen to this. Remember the denial letter. It has to state all the rationale used to support the denial and then also refer to documentation to support that. That's critical because you need to go into the denial letter, examine that same information and determine whether that was cherry picking the file or were they on target and they have a sound decision in their favor.

Speaker 1: 27:56

Now there's an appeal process here. Congress envisioned, when they wrote this law back in 74, that you can appeal. It's going to sound a little ironic, but to the plaint administrator, who the insurance carer? Well, that sounds weird because they just made a decision to deny benefits. Why am I going to appeal to them? But that's the way the process is set up. You appeal to the insurance carer, plaint administrator, whatever, whomever they have designated. They'll tell you. Then you have a period of time to do this. Generally, you have 180 days to do it. Again, the plan document will tell you how long you have to file your appeal. So file the rules regarding the appeal process, again, it's in the plan document. Read the plan.

Speaker 1: 28:41

So the appeal process what do you do first? The first thing I always do is request after receiving the denial letter, the same day I receive it, or send off the email, fax in any way to the document. I can get it there. Back to the claims, the insurance carer, whoever is deciding this and I'm asking for what's called an ERISA E-R-I-S-A that's the acronym for ERISA of the Employee Retirement Income Security Act a 502C document request. The document request request everything the plaint administrator, the claims administrator, used to support their denial of the claim, every document and evidence they use to support the denial claim. That's the 502C document request. Just write that into your little realign of your letter. You're making a document request under ERISA 502C. They will know what it means. They then have legally 30 days to respond to you and provide that same medical evidence.

Speaker 1: 29:42

Typically it's the claim file. So you ask for all those things that were used to support their denial and also ask for the entirety of the claim file. So you know exactly what was in the claim file at that moment time when the decision was made. Very important part when you get that claim file back all those documents back. I would encourage you somehow, some way, if you want to scan it in. You know, pdf maker has Adobe has an ability to put bait stamps on things. Put a number on what you received, because when you submit your appeal you can also put your own number about what you're submitting. So everybody knows what was sent and received back from the claims, the insurance care and what was sent again on appeal. So we have a complete record of all those documents. It's free, it's in Adobe. You can easily do that.

Speaker 1: 30:33

Next thing on the appeal process is get your medical documents in order. This may sound crazy, but you already submitted medical documents. They denied the claim based upon the medical documents you submitted. Well, guess what? You need to go back to your medical providers and saying, hey, they denied it. Do you agree or disagree? And get them to do more testing, get them to write more letters, anything you do to advocate that you're still disabled.

Speaker 1: 30:57

Because you know you're disabled, you can't work, you need disability benefits, and so the medical team has to support your efforts here. If they're not, find another doctor that does this. They're not. The doctors are not accustomed or aware of ERISA. That's why I'm trying to tell you all this back story, all these steps that go in the process. You have to marshal all this yourself. If you want to hire a lawyer like myself, you can do that, but it's incumbent upon you. If you want this benefit, you have to fight for it. This is your full-time job. I know it's difficult, but it is. You have to go through this process. Most important thing about the documentation from your medical providers, your team, is they have to state that you're totally disabled from your own occupation. That's what the letters have to say In quotes Mrs Jones is totally disabled from her job as an executive assistant. And they say why? Due to cancer, due to multiple sclerosis, due to her functional incapacity.

Speaker 1: 32:02

The next step in the appeals process is when you get the claim file. Go through it and see if the insurance carrier has my favorite thing they cherry pick the file. What I mean by is they choose things that are self-serving to their own decisions. It's just a knee-jerk reaction in the insurance industry to deny your claim. They're just going to pick favorable information. These are people who are looking at the claim file internally from the insurance carrier point of view and their job is to deny claim. I know that sounds strange, but I'm going to say something very opposite to that.

Speaker 1: 32:38

Under ARISO, the plan administrator, claims administrator persons those individuals act as fiduciaries. If you know what a fiduciary is, it's someone who's acting in your own interest to protect you, to do something for you, because under the plan both the short term and long term disability you're considered what's called a participant because you're an employee, which are also called something even more greater it's your superpower. You're called a beneficiary, a beneficiary of what? Well, the fiduciary is actions. Fiduciary protects the beneficiary. Oh well, this is an insurance carrier denying claim. How is it protecting the beneficiary? That's the ironic nature of this process. The law is there.

Speaker 1: 33:20

Your job is to show how they did not protect you and how they cherry pick the file and how they did it in an arbitrary and capricious manner. That is generally the standard in ARISO on these short term disability and long term disability cases. That the standard of review is. Did the insurance carrier, claims person act in an arbitrary way to ignore material evidence that was submitted to it, medical evidence that you were totally disabled? Was it arbitrary and capricious? Look up the definition of what it is. It means selective, it means intentional. It means omissions, it means misinformation. It means a lot of things.

Speaker 1: 34:00

Fiduciary's, these claims people. You talk to the person, you call on the phone and they take forever to get on the phone. That shouldn't be that way. By the way, you see, document the times you attempt to make communication with them and put it into your narrative, because every interaction with the carrier after the denial of a claim is crucially important. I'm getting to a point where I'm trying to say to you when the fiduciary doesn't take your calls or doesn't answer you in a matter of weeks, after whatever, you need to be dogged determination to get them on the phone or to write letters every day if you need to, to get them responding to you. For example, let's say you wrote there's a denial decision and you want simple answers to some question you had, and they just refuse to answer you. You wrote letters every day for, let's say, 30 days. You send it by prior to mail. It probably costs you a lot, but nonetheless you send in or you emailed it every single day and they didn't respond to you.

Speaker 1: 34:58

The fiduciary's committed an act of just ignoring you and they can't do that. You've documented by sending letters every day saying I got no response. This is the 10th time, 11th time. That's the dogged determination that I go through trying to document that behavior of an insurance care. Now, that is not going to be the baseline of every single case. It's going to be. Your insurance carrier is going to be reactive and responsive to your request for information. I'm just telling you the horror stories I've had to deal with and they're real, they happen. So understand that.

Speaker 1: 35:33

The interaction with the fiduciary, the claims person on the phone you interact with. They have a legal, material obligation to act in your best interests. Well, they denied the claim. Well, I know, but the standard is you have to show that they have ignored you, that they have this is the one that happens the most often misrepresented information to you about the benefit or how to obtain it. That's why it's really important and if you want to record the call record the goddamn call, so you have it and you can basically include the recording in a transcript. You can get an AI device to transcribe the call. The other thing is understand something when you're calling to an insurance carrier, they are also recording the call. Why do they do that? To protect themselves, to protect themselves from these claims individuals who are well trained. Sometimes they make mistakes. So I say to people record the call. When you get the claim file back, look for transcripts. Some insurance carriers call them soap notes or whatever. They're just literally the interactions. Mrs Jones called today and this is the following we discussed, and usually it's verbatim. Usually there's an AI device there that's recording and transcribing, much like what I'm doing on this podcast right now. There's an AI device in the background recording a transcript.

Speaker 1: 36:51

So the ease of information, of technology that's out there, use it to your advantage and then try to demonstrate to the claims person that they're not acting your best interest. Why am I spending so much time on this? Because it happens so many times. I always look for it, because there are always just people who are not well trained or whatever. It just does happen. So it's an easy, easy go to get information, just being aware that the insurance carrier representative maybe had a bad day, whatever it was. Just they have to act your best interest at all times. It's 100% fiduciary responsibility. So I think you're getting the fact here that they have to act your best interest, but you have to act as your own advocate to really protect yourself, to support your claim at every juncture, knowing full well you can be kicked off the game for whatever reason if you're not on top of what you're doing with the carrier.

Speaker 1: 37:52

So document every call with them, write them letters, be really vigilant to create an elaborate, extensive claim file. What does it do? It sheds lights on the employer or the plaintiff administrator's practices. That's what you're trying to reveal to who? Well, you're building a claim record. This thing is fluid, it's live. It's a claim record. For who? A federal court in the future? Who's going to turn back and look at the retrospective of what you did in your narrative and your interaction with the claims and the insurance care to determine one thing Did this carrier, with Miss Jones, act in an arbitrary, capricious manner? And if you point out every little step of the way that this fiduciary was just screwing you, that judge, both conservative and liberal, will take notice under arrest, because they're required to.

Speaker 1: 38:46

So there's a built-in longitudinal process that I'm describing to you because I've done it. I've done it for many, many cases. You have to follow this process. It works, and it works so well that you may not ever get to court. That's the point. If you do this job really well, self-advocating for yourself and building a claim record and making it look like there's some lawyer like me, an arisen lawyer, behind the scenes. You may get your claim approved because the insurance care can see it. I'm trying to give you a pattern of behavior to deal with the claim, both in short-term and long-term disability, because the carrier may think you have a lawyer and a risk attorney. There are not many risk attorneys out there. I don't know if you know that. So if you put down the pattern and make it look like it, it's free. So why don't you just try to see if you can do that? And, by the way, if you want to add emotion in your narrative, use it sparingly when needed to make a point, but don't over-emotional the narrative. Just state the facts, man and what happened, and just run through it and what took place and keep it clean, because it's just helpful for everyone. We know you're going through a lot, but just try to be objective about your fact pattern and your narrative.

Speaker 1: 40:08

Next thing and step four our Apologist's Appeal Process get the vocational expert I think I've already talked about that For the function capacity review. Get additional medical information. Step five write the appeal. Well, write an appeal. What are you talking about? Write an appeal? That sounds legal? No, just write a letter to the claims administrator, the insurance care, your narrative is dear, so-and-so to make me concerned, et cetera. I've received a denial letter and here's why it should be reversed, and you go into it and you state all the things of your argument about why, medically speaking, you're not capable of performing your job because you're quote totally disabled under the definition of the plan.

Speaker 1: 40:54

You can do this. You don't need to have an attorney do this. I know that's a daunting effect but a task here, but you can do this. You have marshaled the narrative and the medical information to support yourself. Anybody can look at the information of their narrative and the medical and make a story about why it should be improved. You have the medical claim file. You have the claim file from the insurance care because you requested it under 502C and you got back what they had thought about internally. There's a lot of information in there, arguments to make an appeal. I apologize, I have to do this, but you need to be aware of it, and this is where, when you research case decisions on the risk of disability benefits in a Google search, you're going to come across these same arguments and I'm going to give them to you. I talked about one of them and has to do with the standard review.

Speaker 1: 41:45

The standard review in most cases is arbitrary and compressive. Years ago and now I'm dating myself about 28 years and losing track there were plans that had the no language having to do with. They reserve themselves discretion to interpret in the minister of the plan. The insurance company's got smart about it. They realized that well, let's just include if we have full discretion to interpret the plan. And they did that. And all 99% of the plans have this language, if not all of them. So everyone knows the standard review in ERISM is an arbitrary, capricious standard review. It just means that the company has to act in a way to provide a substantial review of your information in an objective, fair, reasonable manner designed to protect you, the beneficiary, and they can't ignore material evidence that's there in front of them. If they do, then it becomes arbitrary. So it makes it self-evident what the definition.

Speaker 1: 42:48

Then there's another standard, another issue, that when I do an appeal at the appeal level the insurance care I'm trying to break down and disrupt the arbitrary, capricious review process, the standard review. I'm trying to show at every avenue that when they talk to Ms Jones on the telephone they misrepresent the plan language and the pain benefit. I'm going to bring that to light. I'm going to show that they weren't acting in her best interest. I'm attacking the substantial weight review and the arbitrary, capricious nature of their behavior by saying here's why. So one of the additional ways I can do that is when a short-term disability plan is self-funded by the employer, meaning that if you're approved for benefits, the short-term disability benefits can come out of the coffers of the plan sponsor, the employer.

Speaker 1: 43:43

That's what's called a structural conflict of interest. It's not an ability to say, aha, we destroyed the arbitrary capricious review standard and we're now left with the default standard of de novo review, which I did not state and I apologize, but that is the de novo. It's the original standard review that Congress envisioned when they created the statute and they said that any court would have to look at the claim file brand new without any deference to the plan administrator. It's not something you need to be really concerned about because it won't occur in your case. Most cases are decided under the arbitrary, capricious standard review because of the discretion language in the plan. Read it, you'll see they've reserved themselves discretion to interpret the plan. The structural conflict of interest typically plays out in the short-term disability format. I have seen it play out in the long-term disability format. There was a Supreme Court case Black and Decker versus Nord I think I'm now just dating myself, but where that structural conflict of interest argument came out and the Supreme Court discussed it, it doesn't break the standard review arbitrary, capricious but it's a factor in evaluating whether the arbitrary, capricious nature had occurred in the case. I'll leave it at that at this point.

Speaker 1: 45:07

Next part of the argument you want to have is really it's your narrative about the. Does the medical evidence support your disability? Are you totally disabled? Does the experts I'm sorry, vocational assessment support your told disability under your own occupation? And it's really the marshaling all your medical evidence, your narrative, your outside information, maybe your family members, their affidavits. Here's the day in the life of Miss Jones. She's unable to do work. She can't even carry bags from the grocery store to her front porch. Use every available piece of information you can.

Speaker 1: 45:47

I want to say something as a tangent right now when you're going through this process. I don't mean to alarm you, but I'm going to just share it, and it has occurred in cases I've worked on. Insurance carriers are in the business of doing what? Taking premiums from an employer and also from employees, because you pay for an LTD carrier insurance through your payroll, but they don't want to do one thing. They benefit and I know it's very opinionated in my part, but when you're in my shoes looking at cases, you really see how that conclusion can appear on very good cases where it's backed up with medical information. Yet they're still denying claim for very, very nice people who are just helpless and their income is impaired because it can't work. I've seen this happen.

Speaker 1: 46:35

So I'm about to describe to you as, when you're on claim for benefit well, short term, long term disability, but mainly long term be aware of something there are people hired by insurance carriers to do one thing to follow you. There's a lot of technology to allow them to eavesdrop upon you. If you're naive to this, then wake up. It occurs. They can't invade your privacy, but they use things like boom mics sitting on a street. So when you go about this process, just be aware of different cars in the street. If you live in a dead end, like I do, you see who comes and goes. Just be aware of that.

Speaker 1: 47:17

If you want to look at your cameras that peer out off your front door see who's watching, it does happen and I haven't seen it happen in a while. But they're out there. What they're looking for is evidence that and this is a real story is people who go to the grocery store and the plastic bags you take out you're carrying like five on one hand and five on another hand well, that's a lifting restriction. If you have a lifting restriction in your claim file and you're carrying the gallon of milk, whatever it is, they're going to take a picture of that and they're going to use that against you. That's a real, true story that actually happens several times in cases. So be aware of that.

Speaker 1: 47:56

I don't think the private surveillance happens a majority of the time, but you need to be aware that it's there. They do it especially in workers' complicated cases because people fake workers' comp all the time. I'm sorry it does happen. That's why there's a lot of fraud that takes place. I don't see as much fraud in the long-term disability area as much you would hear about it. We don't see it. I don't read about it as much. But not say that the practices by insurance carriers to deny claims. They will use surveillance as a means to support their decisions. So be aware of that issue. Step 13 in the process sorry, I mislabeled my numbers the long-term disability policy requires you, even before a decision is made on long-term disability, to apply for Social Security Disability Income, a federal government process where you can apply for benefit, and what you need to know is this you get the same amount of money in disability benefit it just comes from different sources and the Social Security Disability Benefit you receive that decision that you're fully disabled and unable to do your job.

Speaker 1: 49:06

It's a different definition under the Social Security Regulations than the long-term disability plan document, so you can't use the Social Security Disability Income decision to support the long-term disability decision. There are just two different standards. I'll just won't waste any of your time on it, just ignore it. There are some overlap in the area, such as the Chrono Fatigue Syndrome. The federal government under Social Security Disability Income has approved it for disability benefit and so for a partial use of that information, I have used it as well in case decisions support that is a recognized disability, but today it is really a recognized disability.

Speaker 1: 49:47

In the past, the last 20 years, we had to argue with that. You know there was not a somatic nature of these conditions. It was real, it was something happening. So the long-term disability carrier plan document will require you to apply for Social Security Disability Income benefits. Apply for it. Follow the procedures.

Speaker 1: 50:06

Short note on SSDI and SSDI lawyers SSDI lawyers will only get involved when you have to denial your decision. That's when they get involved and their fees and I'm not an SSDI attorney, their fees are regulated and paid for under the statute. So that's when you can approach an SSDI lawyer in the beginning process of applying. But they're really not getting involved into our denied claim. They're out there. You can search for them, you can, you know, call me, email me, I'll direct your attention. Now the appeal process that you've just filed for long-term disability step, I think, around 14,.

Speaker 1: 50:49

Once you exhaust this process and this process is the same as the STD, it's 45 days, up to 90 days, for the plan administrator, claims administrator to render a decision. It's required by law. They'll notify you at 45 days. They need additional 90. But once they get to 90, they have to do one thing they have to give you a decision. If they don't give you a decision, I'm going to give you a little cheat. It's called deemed denied a futility, and if you use that language when writing to the claims administrator and saying, hey, listen, I've documented in the calendar you didn't get decisions. It's due by now and you're now a month late not going to be a month late, but a week late you document that they actually failed to do it.

Speaker 1: 51:35

It's an easy grab of an argument that you can make to yourself in court, if you had to, that you went through a process. You're in good faith. Complied with all the request for information. You documented everything. You provided everything you needed to do. You're exhausted at this point. I guarantee you that, and you have a right to what A decision You're at a beneficiary.

Speaker 1: 51:57

The fiduciary is screwed up and it's not done its fundamental job of rendering a decision under the plan. The plan controls what they do. So if you see it in a futility aspect because they just didn't comply with the deadlines and they're going to try to mess with you and say, well, we're going to extend it again, that's not true. You need to call a futility or an inability to keep the required 45-day and 90-day deadlines and hold them to it, and they'll just try to. I had cases where they go past the 90 days and I document it. I document several times, so everybody's aware of that.

Speaker 1: 52:37

Under Orissa, you have this appeal process I just discussed where you're just in summary, providing all the medical information again, taking a stab at the arguments of why they denied it and challenging them, and they have written a decision. Now, again, that is at the end of this appeal process and rendered an appeal decision. Guess what folks? Sometimes you can file a second appeal because maybe this is more information you have to provide to them, because your disability is ongoing, and if the plan restricts you to only one appeal, then the plan does that, if it doesn't say that you can file a second appeal to perfect your record of your case. Why is that important? Because you're dealing with, in essence, administrative law. An administrative law is really controlled by the record itself.

Speaker 1: 53:26

I'm going to talk about another subject. When you get into a federal court, which is the appeal of the appeal. I know that's crazy, but you have to go to federal court to appeal the decision of the appeal of the plan administrator. That's the process that Congress envisioned and created under our risk. You have to file that. But once you file that complaint. Your record is closed. You can't add to it. You can't add to your record. Once you file your complaint in a federal court. It's closed. There's issues of limited discovery in federal court but I'll explain that beast in a second.

Speaker 1: 54:06

But when you start this process, from day one of your STD claim all the way to the point where you got your denial of your appeal of your LTD denial claim, you've created a record. That record is set in stone by both you and the plan claims administrator and everything you did to doggedly to advocate for yourself. It's all there. As you wanted to create your record, they're going to create their record. If you want recordings and you can do that If you want video, you can do that. You put all your stuff, the support yourself, into your record. You can be really creative about it. Video is a great way to do document. You have no functional capacity to do a lifting issue. That record is closed once you get to federal court, once you file that complaint.

Speaker 1: 54:51

Obviously, when you file a federal complaint in court, there's this implicit nature that you're going to have to hire an attorney. There are Orissa attorneys on a part of a large group unaffiliated practitioners who are all across the country who are there, who want to help you, and they're in every city and every state and when you're looking for an Orissa attorney, look for the acronym Orissa and disability benefits that they advertise for it. There are, they're out there. Please look for them. You'll find in your searching a lot more SSDI lawyers out there. Sometimes they're also Orissa attorneys. But make sure you're working with an Orissa attorney when you're dealing with this type of claim because generally, if you have the ability to get an Orissa attorney involved in the beginning, they're going to run you through the same process I just described at length with you and advocate and push. These are really super smart, aggressive people who've been in the trenches for a long time dealing with insurance carriers and they know the history that I'm describing to you in summary and they know how to deal with insurance care. They're good friends of mine. They've been doing it for a long time. They're committed people, so they're out there for you to find them. If you want to find an attorney, an Orissa attorney, in various states, call me, email me, whatever, I'll direct your attention.

Speaker 1: 56:15

So filing your case in federal court is the ultimate appeal of your denial of your appeal by the claims administrator and filing a complaint in federal court is something. It's not a small task. You can file pro se. I have seen people do it and successfully do it. The process of filing and litigating an Orissa case in federal court is very different, very different than a standard civil matter. I filed over I'm losing track maybe close to 200 cases in federal court. I think about 150, I'm losing track.

Speaker 1: 56:56

The federal court process for Orissa cases is different in this regard there's no or limited discovery and second, there's no jury trial. There's no discovery, no jury trial. So what do you have? You have a federal judge, very good friends of mine, esteemed judges on the bench, who become familiar with Orissa because one third of their docket is employment cases and Orissa is employment, so they get up to speed very quickly. Typically the attorneys are more adept in where of the issues than the federal judge. But the federal bench they're good and they have a lot of resources to support them, other judges as well to help them. But they're going to be aware of the process I just described to you and they're looking at and I've designed this process for one person involved here and that's the judge, and I can't impress upon you that this entire process, if you follow it and you add your creativity to it, the judge will take notice, assuming that you have a total disability well supported by the facts and well supported by the medical evidence, and the chicanery and the gimmickry in the games played by the insurance carrier will be evident in your fact pattern, because you'll have pointed it out and the judge sitting there is acting as the appeal panel of the insurance carrier's appeal process and looking for what Gainsmanship they're looking for.

Speaker 1: 58:30

Did they act in an arbitrary and capricious manner towards you as the beneficiary? Did this fiduciary breach that fiduciary capacity of dealing with you, which is a claim you can have that At the juncture at the federal court level there are two claims, if not three. I'll describe them in general basics Section 502, a1b. That's just what it is. It's a claim for benefits. It's a claim for benefits, whether you're applying for a shortened disability, long-term disability, pension benefits, other types of benefits under RISDA, but generally it's a claim for benefit.

Speaker 1: 59:08

There's another claim that I oftentimes use and I've talked about it, and it's the 502A3 claim. That's the breach of fiduciary duty by the Plains Administrator towards you and it's misrepresenting claim benefits, misrepresenting plan benefits, misrepresenting, omission of information, cherry picking, all this kind of junk that happens that they're not acting your best interest. You call it out in your fact pattern and you use an A3 claim to do that. It's a separate claim. There's a third claim. The third claim is a little bit different. It's section 510 of RISDA, which goes to the employer and it's the employer interfering and retaliating against you to deny benefit. So employer focused, not plan administrator focused, not plan insurance carrier focused, but the employer's focused. What does the employer do to disrupt your claim for benefits? And you would know it that the fact pattern is going to it's involvement by the HR department or someone trying to prevent you from getting benefits.

Speaker 1: 1:00:11

There are rare cases but they do exist. I have a current case pending where that is alleged. It was a short-term disability case and the employer was taking efforts to interfere with the ability of the individual to obtain benefits because it was a self-insured employer sponsored, coming out of payroll, coming out of the coffers of the employer, and so we targeted the employer on that and it was a self-evident section 510 retaliation. There also was a discrimination claim as well built into it. So if you had discrimination based upon disability and you have a fact pattern that's people that is not treating you well. You're more likely not going to have a 510 retaliation claim in your case because the employer is trying to interfere with your ability to do what get your benefit.

Speaker 1: 1:01:00

So you have these claims to assert in federal court. You have your record of your case, that's your administrative record. And so how does the federal court process look like? What do you do? Well, you file a complaint several pages long saying you can I generally sorry, I put my entire fact pattern of my narrative that you created, that we talked about, into the body of the fact section of the complaint. So I'm making my complaint what? Rather lengthy, because I want the court to be just inundated Tears in the eye, just got to get a cup of coffee because I'm going to be reading this long fact pattern. Why? Because I'm trying to tell a story of the tale of woe, the shit that you had to go through to prove your case with this claims, the insurance care to support yourself, and how you just been just, at every turn, just been screwed. And I'm trying to create that story. The judge has to read my story that I'm writing on your behalf. That's why the lengthy fact pattern is very important. The nuances of every telephone call and every interaction with the claims individual is very, very important to cast a light upon the practices because I'm trying to demonstrate that the practices were abusive. They were not objectively examining your evidence and they were just engaging in wholesale cherry picking and just substantial unavoidance of the material facts of your case, that you were totally disabled. So I have the power to create that setting of the story in the fact pattern. That's how long my fact patterns can get. It sometimes upsets federal judges but I respectfully disagree because I'm trying to do something even larger.

Speaker 1: 1:02:46

When I file a federal complaint in a federal court in a RISA case, I'm also trying to demonstrate to another body of a court system. It's the court of appeals. So the federal district court is the trial court. Although there's no trials in these cases, there's a court above that. It's the court of appeals and a court above that is the Supreme Court of the United States. That's what these cases mean. They can go all the way to the Supreme Court of the United States. I had the privilege of being a part of a case that went to the Supreme Court of the United States. If you sit in the and watch a case go through the motions, it's pretty awe inspiring how our process works. There's a system here to protect you, the beneficiary, under RISA, and it goes all the way to Supreme Court of the United States. So when I'm drafting a complaint, I'm writing for a longitudinal time period because I don't know what's going to happen to this case. I'm trying to create a record. My court complaint is part of that record and I'm going to continue to develop that court case all along the way. By the way, is a side tangent the case, and I'm going to alert you to this because it's really important.

Speaker 1: 1:03:54

There are limitations periods that you need to be aware of, and that's what the Supreme Court case that was involved with and dealt with. It was a Hartford and Trensk area, I think it was. They put into their plan that individual must bring one case before the federal court within one year of denial of benefits or something like that. I'm doing this by memory. So they limited the sexual limitations to one year. Typically it was up to six years, I believe, or was even longer. So so check your plan document, read the plan document and go through and read through all the way through the past administrative process and denial of the appeal to the plan administrator and look at how many years or time period you have to file your lawsuit in a federal court, and it's going to say it right there because it has to. So read it, because most insurance carers now try to carve down the sexual limitations and maybe six or ten years I'm losing track, but they definitely I now see a one-year limitations period because they want to do what? To deny claims If one year's, if you can control that in your plan document, that's what the plan administrators are doing now. They're putting language in their own plans to do that. It's perfectly legal. The Supreme Court case I just described allows them to do that and so it's more likely you're going to have a one-year limitations period to bring a lawsuit, okay.

Speaker 1: 1:05:13

So it's very important the actual process of the federal court procedure of dealing with your case on your complaint. It really is a one-step process. You're going to file your sorry two-step process. You're going to file your appeal in your complaint to federal court and the employer is going to respond and they're going to deny the by an answer saying deny it. And the next step in the process for you is is to file a motion on the administrative record to the court. Some people will call this filing of motion for summary judgment, but filing a motion for a minute on the motion for judgment on administrative record is a slightly different vehicle. It's an orisa created by case law practitioners, and the courts understand what it is.

Speaker 1: 1:06:02

Essentially, what you're asking the court to do is take a look at the case of the complaint and the administrative record that you've compiled and make a determination based upon the applicable statute or the review, which is basically arbitrary and capricious, and the court will go through that process and render a decision. Once it renders a decision, it will give you in writing whether they found arbitrary and capricious behavior and decide to remand the case back to the plaintiff administrator with instruction. That happens a lot and typically, if that happens, basically your claim is going to get approved and the case is going to go away. If it is denied and he means the court says no, we, you know you don't get your benefits because the plan did exactly what it needed to do you have to then, unfortunately, think about if you need to file an appeal to the Second Circuit or the Court of Appeals in your jurisdiction with a required period of time. There are timelines to do that, so it gets more complicated. But if you have a serious, severe case and you need this disability and you know it's very important, you have the ability to go through that process to appeal to the next level.

Speaker 1: 1:07:15

Again. Administrative record is set. The court record is set. You're now dealing with the district court having an argument that they got it wrong and you want to make an argument that it's it needs to be reversed. You have the ability to do that.

Speaker 1: 1:07:28

So I'm not going to. I'm going to stop at that juncture because getting too far a field of you know. Really, at this juncture, in federal court, you're going to need a lawyer who's a practitioner, who knows the rules. Don't waste your time trying to figure it out yourself. Unfortunately, it's too esoteric. It's the rules are all there for you but it's takes. When you get the experience of a lawyer involved, this it pays off because the person can fly through the process and hone in on the arguments and to perfect your case. So I hope you found this elaborate process informative. It does work and I'm going to close by saying it's unlikely you're going to hit federal court in your case. Okay, it most insurance carriers.

Speaker 1: 1:08:15

If you follow the process I've described to you with building your case and your narrative and building your medical evidence to demonstrate you're totally disabled, it's more likely than not that they will back off and approve the claim on the LTD. It's more often not these days than it had been in the past Doesn't mean they can't send you to federal court because they deny your claim, but if you show them that there's a maybe a ghost lawyer in the background, got in this process. That's the point and you can do that. If you need to hire a risk attorney to help you through the appeals process, because what I've just described to you is just daunting I hope it's not so daunting and I hope you can have the ability to try, but the risk attorney is there to help you if you want to go find them. The problem is that you got to give up some of your fees or your benefits in the event that you win your case and the alternative you pay lawyers hourly rates to also do this as well. So when you think about that decision to hire a lawyer, think about the investment of your money into the process, because of the resulting return is the aspect of a benefit being paid to you and without use of litigation.

Speaker 1: 1:09:29

So I always try to win cases at the administrative level.

Speaker 1: 1:09:33

That's why you have this elaborate process I've described to you, because it does work. It works a majority of the time that the insurance carers back down and they realize that there's a lawyer present obviously present and I'm making arguments, and they have to basically statistically say okay, well, we're not going to win on this one because he's got the right points, he's making the right argument, so it's worth the investment finding an risk attorney and just go through that process. I've tried to give you just about everything I had my brain to just dump on this to explain and process for you. It's a little overwhelming, I'm sorry, but it does work. You can play it back and revisit the different points but, in summary, the fact pattern is controlling. It's a fluid thing going all the way through. The medical evidence needs to support what you're saying. If it doesn't make it, support by getting the right people involved. Make your arguments to them why you're disabled and why you need the income benefit from them. With that, good luck to you on your case. Hope you win and be well.