Winning Isn't Easy Season 3 Episode 30: Timing Issues in ERISA Disability Claims

Welcome to Season 3, Episode 30 of "Winning Isn't Easy"! 🎙️

In this episode, we tackle a crucial aspect of ERISA disability claims: "Timing Issues in ERISA Disability Claims." Join your host, Nancy L. Cavey, a seasoned ERISA Disability Attorney, as she navigates the complexities of timing and its impact on disability claims within the ERISA framework.

We'll explore:

⏳ The significance of timing in filing and pursuing your ERISA disability claim.
📅 Critical deadlines you must be aware of to protect your rights.
🕰️ How delays or missed timelines can affect the outcome of your claim.

Whether you're currently navigating an ERISA disability claim or seeking to understand the critical role timing plays in these claims, this episode provides invaluable insights to help you on your journey.

Tune in to Season 3, Episode 30 of "Winning Isn't Easy" for expert guidance on handling timing issues in ERISA disability claims. 📻⏰

Resources Mentioned In This Episode:

FREE CONSULT LINK: https://caveylaw.com/contact-us/

Greg's website link: https://www.tencap.com/

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Please note that the content shared is based on general knowledge and should not replace personalized advice from a qualified attorney or legal professional.

Transcript

Disability Attorney Nancy L. Cavey: 0:00

<silence> Hey, I'm Nancy Cavey , national ERISA and individual Disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've gotta give you that legal disclaimer that the Florida Bar tells me. I have to say this episode is not legal advice. Now I've said it, but nothing will prevent me from giving you easy to understand information about the ERISA disability process, an overview of the disability insurance world, and the games the carriers play that you need to know so that you can get the disability benefits you deserve. So off we go. Today I'm going to be exploring the timing of your ERISA disability insurance claim when you should and shouldn't be doing things. And specifically, I'm gonna be talking about should you file your ERISA disability claim as early as possible. I have multiple disability policies. Should I file all of my claims at the same time and should I respond to the disability carrier or plans questions or request for more information? And if so, when? Got it. Before we get started, let's take a quick break.

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Disability Attorney Nancy L. Cavey: 1:41

Welcome back to Winning Isn't Easy. Should you file your eris a disability claim as early as possible. Now, your Dr. May have told you that it's time to stop work and apply for your disability benefits, or you're beginning to have problems performing your work duties. You might be thinking that it's time to stop work and apply for your benefits. So what should you do? Should you file your disability claim immediately? Should you hold off? These are great questions that I get all the time . Now, some lawyers will tell you that you should file your initial claim as soon as possible, but I disagree with that blanket advice. I think that there are a number of things that you should do before you stop work and apply for your benefits. But before we discuss that, I wanna talk to you about the difference between filing a claim and putting a disability carrier on notice of a claim. Putting a disability carrier on notice of a claim is important because many disability policies or plans require that you provide them with notice. And notice is just that it's notice that you have a potential claim, but you may not necessarily be ready to file a claim. Now, depending on the circumstances of a case, I prefer to develop the claim so that it is as strong as possible and supported by medical records and physicians before I run out and tell the carrier that I might be filing a claim or that you are filing a a claim on your own. The only exception to my rule is that if there is potentially a situation where you think you're going to be fired or laid off and you wanna give the carrier notice of a potential claim before that happens. However, I think the preferable way to handle , uh, this is to potentially get a note from your doctor taking you outta work and preempting a termination and layoff that can result in you losing your disability insurance coverage. And in that instance, we don't wanna file notice, but we rather we wanna file a claim because , uh, of the, the speed with which , uh, you might be terminated or, or let go because we want to still have cover which you're gonna lose , uh, after you're terminated. Now, what I prefer to do is to make sure that the claim is well developed and supported with an appropriate date of disability before I give notice and before we actually file a claim. But again, it depends on your personal circumstances. So what should you do before you put the carrier on notice of filing a claim? I think you need to get a copy of that disability policy or plan. You should consider reading it cover to cover so you understand what it is you, you you need to prove to get your disability benefits because you've got the burden of proof. You need to get a copy of your medical records and read them cover to cover to see what your records have to say about your symptoms, your functionality, whether or not the doctor believes you, and whether the doctor would be willing to support your claim. You should be talking with the doctor off the record and see if they support that claim. And if they don't, before you stop work and apply for your benefits, you obviously are gonna have to change physicians and find one who supports your claim. Now the other thing that's important is deciding on the right date to file a a claim and say that I am disabled. So picking that right date of disability can impact benefits such as group insurance benefits or retirement benefits. It takes careful planning. You need to understand what the amount of your benefits might be. Are there any offsets? Are they limits to how long you might get the benefits? So you've gotta understand what the bottom line is and whether you can afford to apply for benefits. And whether you want to do that now or later, you can see consulting with an experienced ERISA disability attorney or an I D I attorney can be crucial and they are gonna help you with the details of your policy and you should have them look at your medical records and develop a strategy that will help you pick the right date to claim that you're disabled. Got it. All right , we're gonna take a quick break. Hey, welcome back to Winning Isn't Easy. You should be filing a disability insurance claim only after you have done your homework. Uh, and that's particularly true if you are a professional such as a doctor or a lawyer. You may have what's called a residual disability insurance claim. And you want to make sure that that is developed and perfected before you file a claim and before you file a claim for total disability benefits. So you're gonna have to be producing a lot of medical information, financial information, and it has to be correlated in regard to when you have a drop off of income that will make you eligible for your residual benefits. And of course, your medical records have to support that. The reason why your loss of income is secondary to your medical condition, and of course you wanna make sure that your medical records are documenting your symptoms and functionality and that all is developed and all of that will help decide the date you're gonna file a claim for residual disability benefits or the date you're gonna claim total disability benefits. You can here , based on my description, that you can make lots of mistakes by not understanding what it is you have to prove, presenting the appropriate financial, medical and vocational proof, and of course having that support of your physician. I don't want you to be filing an initial claim as soon as you can unless there are certain circumstances, individual circumstances, that would justify that. It's better in my view to put the carrier on notice unless you're gonna be terminated and then develop all of this before you submit the claim. Um, I am always trying to make sure that the medical records support , uh, the date that we've picked as being disabled, that the medical records tell a story of symptoms and functionality , uh, and that , uh, any loss of income in a residual claim is supported. You can see that it is really important to be coordinating this with an experienced ERISA disability attorney. Next I'm gonna talk about is filing a long-term disability application as easy as it looks ready for a break. Welcome back to Winning Isn't Easy. Is following a ERISA display application As easy as it looks well, the application looks short, simple, and to the point, and in my view, it's anything but I think it's full of hidden traps for the unwary. I think it's designed to give the disability carrier plan reasons to deny your benefits. So what are some of the traps in a application for long-term disability insurance benefits and why wouldn't you not want to rush to complete that application? Now there are many traps, but I think that there are three important and common traps that I see in all of the applications that we're dealing with. The first trap, I think, is what's the date of disability? It's known as the onset date. The second trap deals with the questions about your occupational duties. And the third trap deals with the questions about disabling medical conditions and a mistaken , just one of these can result in a claims denial. Let's start out with the date of disability. It's important that you pick the right date to claim that you're disabled and that that date is supported by medical evidence. So if you recently have gotten coverage, the disability carrier is first gonna determine whether or not they can deny the claim based on the pre-existing condition clause. They're gonna have a lookback period and they're gonna see if you've gotten treatment or should have gotten treatment for the disabling condition that you're claiming. And if that happens, your claim just might be denied on the basis that your disability is caused by a preexisting , uh, condition and too bad , so bad , sad , no coverage. Now the date of disability is also important again because it has to correlate with your medical records. You worked yesterday but you didn't work today. What happened in between? Your medical records have to explain that . Or better yet, your medical records should show a progression of your symptoms and a basis for picking the date that ultimately you pick as the date to become disabled. Now, the other trap, I think, is the occupation. When you purchase a disability insurance policy or plan, you insured your occupation and not a job. There is no uniform definition of occupation in these policies. It could be how your occupation is performed in the national economy, how it's performed in the local , local economy, how it's performed for your employer. You need to understand that because this application is gonna ask questions about your duties. The carrier or plan is gonna try to inflate your job into an occupation, and they'll often make a mistake about your occupation based on what you put on these forms and that mistake is gonna benefit them. So during this initial application stage, again, you have the burden of proving that you can't perform your own occupation as determined by the definition of the of occupation and the policy of plan and as decided by the carrier of the plan . So you want to make sure that you are fully explaining not only the physical duties that you have, but the cognitive duties that you have and your interaction with the public. I call it the s psychosocial duties. I want you as you're doing this, to think backwards. What is it about your disabling medical condition that would prevent you from doing all or some of these duties? And you wanna make sure that that's in your occupational description. Now what's also important is what your disabling medical condition. I'm often asked, should I list my primary disabling condition or all of my conditions? The application doesn't really make that clear and they want you to commit to just one and not all of your disabling medical conditions. I don't, I don't buy that. I think you need to claim all of your disabling medical conditions individually and then the combination of your medical problems that make it difficult, if not impossible, for you to perform the material and substantial duties of your occupation. And you can see that this isn't as simple as it looks, but you should be consulting again with an experienced ERISA disability attorney who can help you understand your policy, how to complete that application and help you formulate the correct , true and accurate answers. Remember, the disability carrier is gonna try to mischaracterize your medical condition, your occupation. They're looking for a reason to deny the claim. This is an adversarial process from beginning to end, and it can be hard to fix a mistake after the fact your claim has been denied. I think it's far easier to get answers and assistance in picking the date to become disabled, developing the medical and vocational proof , uh, completing the forms, having the support of your physician before you are submitting that application. So please don't make a mistake that you will regret. Let's take a break. Welcome back to Winning Isn't Easy. I have multiple disability insurance policies. Should I file all of my claims at the same time? Great question. Another question I get all the time, and I don't think there's a uniform answer because each policy is different and they have different notice and proof requirements with different definitions of disability, occupation, policy limitations. So you gotta parse all of these policies out. I think the better approach is to get them out, read them cover to cover, analyze the terms and conditions of each, and you might be surprised to find that the terms of the policy or plan contradict each other or that one policy will allow them to reduce your benefits by what you get from the other policy. Now, one disability policy may say that there's a three month waiting period before you get your benefits while another says there's a year waiting period. In that case, you probably are gonna wanna file them as quickly as possible. So you are getting your benefits, but again, the claim has got to be supported. Once you understand the terms of each policy or plan and what you have to prove next, you should be getting your medical records out and read them cover to cover what are in those medical records. Those medical records are gonna make or break your case. Does your doctor support your claim? Yes or no? Not a maybe yes or no. Now, I generally don't think that there is a reason to file all of the claims at once unless and until there's this analysis of the policy plans and analysis of the medical records so that there can be a , um, strategy and a timing for the filing of these claims. I think doing it yourself without understanding this and the coordination that's involved can be a disaster, don't you? So don't make a mistake like this. We're gonna take a break .

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Disability Attorney Nancy L. Cavey: 16:03

Welcome back to Winning Isn't Easy. Should I respond to my disability carrier plans , questions, or request for more information? Now, I want you to understand that under the federal ERISA rules and regulations, a disability carrier or plan has a number of obligations. And one of them is they are required to respond to your initial application in a timely manner. So you in turn should respond as quickly as possible, however, is not a slap dash , get it out the door, get my homework done so I can go out and play type of approach. Your response should be complete and accurate. So for example, if they ask you to fill out a form, you should do so carefully, and when you do it, you should be sending it back email or certified mail return receipt requested. I want you to keep a copy of it. But before you're sending it out, I want you to carefully think about the answers to your those questions. I want you to let them sit a couple days and then maybe give them to a loved one or someone else to look at. You answer the question. You're not telling a story, you're not writing a book, you're answering the question. But you need to do that completely inaccurately. And I always think that symptoms and functionality are a good way to think about answering the question. Now, you might be tempted to just call the claims examiner and give them the answer on the phone. Please resist that temptation and please resist sending them an email. I promise you that the claims examiner can and most likely will twist what you say into something that's completely false if you are having a phone call. And they'll potentially do the same thing with emails. I've had that happen a lot where the adjuster will ask a question, the claimant will give an incomplete answer. And when the adjuster should follow up with a follow-up question to expand on the answer, they don't. And they don't do it on purpose because they like that incomplete answer and they can twist it and use it as a reason for denying or terminating benefits. They will create , uh, a reason to deny the claim or terminate benefits based on what you have said. And if you don't understand what's happens in these phone calls or in emails, you're setting yourself up for a claim denial and termination. I never ever let my clients communicate with a disability carrier by phone or by email. It comes through me because I understand the policy and the plan. I understand the medical records and I understand why the carrier is asking the question and how they're gonna be using your answers to set up a claims denial or termination. If you decide not to follow my advice and you speak with them, write a confirming email that is factually based. 1, 2, 3, 4. Don't fill in any stuff about this or that I'm disabled. Um, you know, I hope you pay my benefits. Um , I'm a good guy. I'm a good person. I love my family. I rely on these benefits that does not move them a second. Doesn't move them emotionally, intellectually, isn't gonna move them to pay the benefits. You should be answering the question and keeping a copy of your answer. So you wanna be keeping a contemporaneous record of the discussion. Now, of course, they won't let you record the conversation depending on where you live, you might be able to do so without their consent. But I'm not giving you legal advice about recording conversations with disability carriers or plans. What happens if you don't timely complete or respond to the request for more information? You can count on a claims denial unless you request an extension and they grant that extension. Be careful of the extension game that the carrier plan will use because they may say, look, if we don't get what you say you, you sent us , um, by this date, we are going to deny your benefits. Then again, they're kind of setting you up for a a claims denial and you need to be having an exchange of correspondence with them saying, this is what I sent you. This is what you asked for. This is what I'm getting. This is how much time I need. This is how much time you got. They may play this game. Well , we still need more information. And that delay the game is being played. It certainly is time to hire an experienced eris , a disability attorney. Remember that under the rules they have a time to respond, but extensions can extend that time. And when do the extensions end? That could be the endless extension game, the delay game. And at that point, I think you'd, as I said, need an experienced or risk a disability attorney who can provide them with the correct and complete information and get a timely response from the carrier. Or the plan delay is their way of bleeding your finances, hoping that you give up. They don't have to pay the benefits you deserve. So again, the answer to the a lot of these questions depend on your individual circumstances, what the policy or plan has to say, what your medical records have to say. Uh, and you're doing all , all this while you're dealing with your disabling medical condition, making a lot of important decisions, applying for disability benefits, dealing with applications, dealing with delay, dealing with denial or termination, really isn't what you should be doing. You should be consulting with an experienced eris, a disability attorney and hope I've made my point , uh, in this episode of the podcast. If you've enjoyed this episode, which I hope you have, and I've been a little harsh here , um, I want you to please like this episode, share it , uh, and leave a a review. I'm telling you these hard facts because I think you'd rather hear them from me now that have to deal with me or another ERISA disability attorney after your claim has been denied or terminated or after you've blown your appeal that you tried to do by yourself. So don't make a mistake. Please subscribe to this podcast and follow us , uh, on Facebook. We love working with people who have disability insurance claims. That's my passion and it's my passion because I come from the family of a disabled policy holder. So great, and we look forward to presenting you with another winning , uh, insightful episode of Winning Isn't Easy.