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Frequently Asked Questions | RMS Law | rms.law
Frequently Asked Questions

Frequently Asked Questions


How Do I Apply For Long Term Disability Benefits?

Most of the time, you must first apply for short term disability benefits. After short term disability benefits end, you can apply for long term disability benefits. The Long Term Disability insurance company has application forms you must submit. The application generally asks for demographic information, information about your disabling conditions, and information about your healthcare providers. The insurance company will also obtain information from your employer and your doctor. Finally, the insurance company will likely have you sign an authorization for release of information.


How Much Is My Disability Benefit?

Your disability benefit is calculated based on the insurance policy your employer (group) or you (individual/private) purchased. Disability insurance is a form of income replacement and generally does not provide you with 100% of your lost earnings. Generally, your benefit will be based on a percentage of your pre-disability earnings. Many group policies have a benefit amount ranging from 50% to 70% and most often it is 60%. You should refer to your benefit booklet or policy or contact your employer to find out what your benefit amount or percentage will be. You may also want to determine whether the calculation is based on your net or gross pre-disability income and whether the benefit is taxable (your employer contributed to your premiums) or non-taxable (you paid the full premium for the benefit).


How Will The Insurance Company Decide If I Am Entitled To Long Term Disability Benefits?

The Long Term disability insurance company will consider medical records, vocational information, information provided by your doctor, expert reports provided by individuals employed with the long term disability insurance company, and almost any other information that you submit to the insurance company in support of your claim.


Am I Still an Employee of The Company While I’m On Long Term Disability?

It depends. Under some plans, a person on leave for long term disability is still considered an employee of the company and entitled to employee benefits. Under other plans, a person on leave for long term disability is not considered an employee of the company.


If I Can No Longer Work, Should I Quit or Use FMLA or PTO?

Each employer and insurance company has different policies when it comes to not being able to return to work. Sometimes, you may risk losing eligibility for benefits if you quit your job or agree to any severance terms.  You should consider getting advice from an experienced attorney before you make any important decisions or agree to a severance package.


Following A Denial of My Claim, The Insurance Company and My Employer Are Pressuring Me To Return To Work But I Am Still Disabled, What Should I Do?

If your employer contacts you, you should advise that you are still disabled, and you will be appealing or contacting a lawyer to dispute the denial of your claim. You should not return to work prematurely or without medical clearance. Doing so may aggravate your condition and strain the employment relationship.


I Am Receiving Disability Benefits But I Would Like To Return To Work, What Should I Do?

If your condition has improved to the extent that you are able to attempt a return to work, you should discuss this with your doctor first. Your doctor may recommend accommodations and a gradual return starting with reduced hours. You may then wish to contact the insurer. Often the insurer will work with you and your employer and your doctor to transition you back to work. You may also want to reach out directly to your employer. If you are unsuccessful and go off work again due to the same or related disability within a set period of time (usually six months), your policy may have a Recurrent Disability provision which would allow for your benefits to resume without having to satisfy the waiting period, again. It is important to contact a lawyer to discuss this issue so that you do not compromise your rights unintentionally.


Are Long Term Disability (LTD) Benefits Typically Denied?

Unlike social security disability, long term disability benefits are provided by private LTD insurance companies. Insurance companies are in business to make profits. Logically speaking, paying out on fewer Long Term Disability claims means more profit, and paying out on more claims means less profit. Too often a claim that should be approved becomes unfairly hostile and adversarial. Are LTD disability claims unfairly denied? The answer is YES, without a doubt, many are. In fact, one of the largest, long term disability insurance companies was recently investigated by the Department of Labor and was forced to agree to reconsider 200,000 denied LTD claims.


Why Was “MY” Disability Claim Denied?

There are many reasons why disability claims are denied. The denial letter will provide information regarding the basis upon which it was denied. Often the insurance company will conclude that there is insufficient medical information to support or confirm that you are not able to work and that you are disabled. Sometimes the insurer may take issue with your treatment; finding that you are not receiving appropriate treatment or that your treatment is not indicative of a severe condition. There may also be comments in your medical records that suggest that your condition is improving or that that you have the functional ability to complete the duties of your occupation. If you do not participate in the insurance company’s rehabilitation plan or if you do not do a gradual return to work proposed by the insurer, your claim could also be terminated. There may be other reasons, such as surveillance, which may/may not be cited in the letter, which resulted in the denial. It is best to contact a lawyer immediately upon receiving the denial letter.


What Tools Will The Insurance Company Use To Deny My Disability Insurance Claim?

Insurance companies make money by collecting premiums, not by paying claims. Once you file a claim, you represent a potential loss to the insurance company. Thus, insurance companies try a variety of things to try to prevent having to pay your claim. Such tactics include, but are not limited to:

  • Falsely claiming that there is not enough medical evidence to support your claim
  • Refusing to believe that your subjective complaints — such as pain and fatigue — are real
  • Relying on the opinions of in-house doctors, whose opinions overwhelming tend to support their employer, the insurance company
  • Hiring so-called “independent” outside physicians to review your medical records, with the expectation that those doctors will also produce reports that will support a denial
  • Failing to talk to your doctors, or even worse, calling your doctors without an appointment so they are unprepared and attempt to trick them into saying that you are not disabled
  • Conducting surveillance of your daily activities in an attempt to “catch you” acting in a manner inconsistent with your claimed restrictions and limitations
  • Reviewing your social media posts and using what they find against you
  • Misrepresenting your actual job duties
  • Not fully advising you of your rights and obligations under the policy
  • Stalling by asking for more and more records to support your claim, even if you already provided them with access to all of your medical records
  • Attempting to rescind your policy because the insurance agent did not include information that you told him or her but they failed to include that information on your application
  • Failing to be specific in the information that you can provide to support your claim

Your long-term disability claim may have been denied for several reasons, but you should never accept a denied claim without first speaking to an experienced disability attorney.


My Doctor Does Not Support My Disability Claim, What Should I Do?

It is important that your treating doctors and specialists support your claim for disability benefits if you are not able to work. If you feel that your doctor is simply not understanding the nature of your restrictions and limitations, you may be able to rely on your other doctors and specialists to complete forms and communicate with the insurer. Alternatively, you may need to find a new doctor who will be more supportive.


I Do Not Know What Is Causing My Symptoms and I Do Not Have A Diagnosis, Will That Be A Problem For My Disability Claim?

Although a diagnosis is not a requirement under most disability policies, it is something that the insurer will look to in order to gain a better understanding of the severity of your symptoms and your functional limitations and restrictions. If you have an undiagnosed illness that is preventing you from working, it is important that you and your doctors continue to investigate the cause of your condition and make the best efforts to treat the symptoms. The insurer should be focused on whether you are functionally able to work and not a specific diagnosis. If your benefits are denied because your illness has not been diagnosed, you should contact a disability lawyer.


I Am Having Problems Getting In To See Doctors And Specialists And Get The Necessary Treatment Or I Can’t Afford The Necessary Treatment, Will That Be A Problem For My Disability Claim?

Your disability insurance policy requires you to be receiving appropriate treatment in order to be eligible for ongoing benefits. The insurer should be aware that many regions are under-serviced with respect to specialists and treatment providers. The treatment you require may simply be unavailable to you. Similarly, if your extended health care benefits have been exhausted or terminated by your employer, you might not be in a position to afford ongoing out-of-pocket treatment expenses. In both these instances, the insurer should not be terminating your benefits due to a lack of appropriate treatment. If the insurer does deny benefits on this basis, you should contact a disability lawyer.


Can My Insurance Company Deny My Claim Due To A Pre-Existing Condition?

Most disability policies have a pre-existing condition exclusion. While the wording of the exclusion varies between policies, generally, a disability claim will be denied if you become disabled within 12 months of becoming insured under the policy from a condition or related condition for which you sought treatment or consulted a doctor within the three-month period prior to your coverage taking effect. This is an important exclusion to remember if you feel you might need to stop working due to disability and you are a new employee, not having disability coverage in place for a full year.


How Can a Long Term Disability Attorney Help Me Win My LTD Case?

Having a long term disability attorney as your advocate can send a strong message to an LTD company that you need to be treated fairly.  A good long term disability lawyer also should know what medical records and other materials are needed to maximize the likelihood that your benefits will be paid.

Most claimants who show up at a Social Security Disability hearing unrepresented, generally do not win. You must “prove” your entitlement to certain benefits. Dealing with a long term disability claim is very much the same and you should probably consider speaking with an experienced long term disability lawyer before making any decisions.

Having an attorney on a long term disability case can help you improve your chances of winning and motivate an LTD carrier to properly evaluate your claim, giving you proper and fair consideration. Depending on the state in which you live, if the LTD company arbitrarily denies your claim, they may be required to pay your legal expenses and may be assigned to pay punitive damages for having operated in “bad faith”.


Why Should I Use a Disability Lawyer?

While a disability lawyer is not required, your chances of securing disability benefits increases significantly if you are represented by an experienced disability lawyer. The sooner you retain an attorney, the more time the attorney will have to obtain the medical and vocational evidence to prepare your claim. An attorney should help you avoid making statements at interviews and in writing that can be misconstrued, and how to address evidence that may appear to hurt your claim for disability benefits, such as reports from doctors paid by insurance companies and the Social Security Administration (SSA).


When Should I Consult a Long Term Disability Attorney For My LTD Claim?

It’s best to at least consult with a long term disability lawyer before even applying for LTD benefits, simply to know what you may be up against. Unlike social security disability claims, a long term disability claim, is handled on the basis of a legal contract entered into by two parties, the LTD carrier and the long term disability claim holder. Contracts are typically written to favor the writer of the contract. Consulting with a long term disability lawyer can help you better understand both the terms and provisions of your policy and, if you choose to retain representation early in the process, it may signal to your insurance company that your claim should receive proper, thorough, and fair consideration.


If My Doctor Or I Send A Letter Saying That I Cannot Work Will My Appeal Be Successful?

Not necessarily.  Too often, people believe wrongfully that a letter from a primary care physician should compel payment of benefits. Substantive medical evidence, updated diagnostic testing, Independent Medical Evaluations and frequently vocational evidence are invariably required to maximize the likelihood for an appeal to be successful.


Should I Apply For Social Security Disability And Long Term Disability Benefits At The Same Time?

Most likely yes, especially since it may be a requirement of your LTD, or long term disability policy. The long term disability carrier is simply hoping to get back payments on disability you are entitled to receive from Social Security Disability. This is not fair because an LTD, or long term disability policy is something you pay for. If you become disabled and are unable to work, you should be entitled to receive your long term disability benefits, because you paid for them without having to turn over your SSDI back payments, allowing the long term disability carrier to recover their costs.

Unfortunately, this is a provision that long term disability companies have been allowed to insert into their contracts. Fortunately, you can seek the assistance of a long term disability lawyer at any point in this process. This can be done while the LTD claim is being decided, after a claim is denied, or even before a person has been denied for long term disability benefits.


If I Am Receiving LTD Benefits Will I Automatically Get Social Security Disability Benefits, And Vice Versa?

No. Approval of disability benefits by an insurance company or the Social Security Administration is not binding on the other.


Do I Need to Be Concerned About a Doctor Selected by An Insurance Company To Examine Me?

Yes. A so-called “Independent Medical Examination” by a physician paid by an insurance company is rarely independent. These physicians know who is paying the bill and they aim to please in order to get more work. Surprisingly, these physicians frequently do not specialize in the area of medicine that is relevant to the claimant’s impairments. Furthermore, because these physicians only get a “snapshot” of your condition from their one examination, they often fail to observe or understand the problems you experience intermittently or in varying degrees of severity.

Is Surveillance by The Insurance Company Legal?

Surveillance is legal so long as the insurance company and investigator are acting within the bounds of privacy laws.   Generally, this means that the surveillance must be justified and there is no other means by which the insurer could obtain the information other than by surveillance.  The investigator may not enter your home or peer through your windows or look over your fence. The investigator must be able to view you from public property. Practically, this means that the investigator may take photos and video of you while you are on your property or in any public space. The investigator may follow you while you run errands or socialize or go to appointments, etc.  The investigator will also conduct online surveillance to gain additional insight into your activities by extracting information from what you post on social media or other platforms.

What Should I Do If the Insurance Company Is Conducting Surveillance on Me?

You should go about your normal day-to-day activities. You should ensure that you provide an accurate reporting of your activities to your doctors and to the insurer. You do not want there to be any inconsistencies with respect to your functioning on surveillance and your reported functioning to your doctors and the insurer. You may also call the police if you feel threatened or uncomfortable. Police may speak to the investigator however if the surveillance is being conducted legally, police will not put a stop to it. The investigator may cease surveillance knowing he has been identified by you. If you find surveillance to be causing you stress, you should speak to your doctor about it and also contact the insurer.

What Are the Chances Of Receiving Long Term Disability Benefits Based On A Mental Condition Or Disorder?

Most LTD policies put a cap on the amount of time you can receive long term disability benefits for reasons of a mental condition. It has actually been alleged that LTD carriers will attempt to classify some conditions as mental versus physical to avoid having to pay long term disability benefits beyond the typical two-year time frame. This is why it is very important to have an experienced long term disability lawyer on your side. A lawyer can review your policy before you file a long term disability claim, to better understand your plan’s definition of disability so your plan’s requirements for approval have a stronger chance of being met. More importantly, however, a lawyer can work to ensure that your claim receives full and proper consideration. The involvement of an attorney, especially one who specializes in long term disability, may give the insurer the necessary incentive to review the claim properly.

How Does the Definition of Disability Change After Two Years And Why Might My Claim Be Denied At That Time?

Under most group disability policies, the definition of “total disability” changes after two years. For the first two years of disability, you must be disabled from performing the essential duties of your own occupation (this is broader than your own job). After that, you must be disabled from performing the duties of any occupation for which you are suited by way of your education, training and work experience. The exact wording and requirements vary between policies, as such you should refer to your policy to determine what definition(s) of disability apply to you. Often claims are denied at the two-year mark when it becomes more difficult for people to prove that they are totally disabled from any occupation. If your claim is denied at this point, you should contact a disability lawyer immediately.

If My Long Term Disability Insurance Company Denies My LTD Claim, Can I Sue Them?

You may be able to sue your long term disability insurance carrier if they act in bad faith and unfairly deny your LTD claim. However, if your long term disability insurance plan is an ERISA plan you will not be able to sue for punitive damages. You will be able to sue for the long term disability benefits that you are owed along with interest, plus a portion of your long term disability lawyer fees.

Regardless of whether your long term disability benefits are derived from an ERISA or non-ERISA plan, the involvement of a long term disability lawyer on your case can serve to send a strong message to the insurance company that your LTD claim should receive full consideration. It will simply not be worth it to them to escalate their own costs. Hiring a long term disability lawyer can better your chances of receiving benefits.

If My Claim Is Denied, How Much Time Do I Have To File An Appeal, Or To File A Lawsuit?

If your claim is denied and governed by ERISA, you are required by federal law to file at least one appeal. ERISA regulations require that an appeal must be filed within one hundred and eighty (180) days from the date of the insurance company’s denial letter; so it is imperative that you quickly and efficiently take proactive steps to appeal the insurer’s decision.

For both ERISA and private disability claims, the time frame to file a lawsuit is typically governed by state contract law, unless the applicable disability plan requires a disabled claimant to file suit within a shortened period of time. If you are considering filing a lawsuit, it is imperative that you consult a lawyer expeditiously to determine if your claim can be timely filed within the applicable statute of limitations.

If I File A Lawsuit Against The Insurance Company, Will I Have An Opportunity To Testify?

If your claim is governed by ERISA, unfortunately neither you nor your physicians will be able to testify in your case. Moreover, with limited exceptions you will not be able to present any additional evidence beyond what was previously submitted to the insurance company.

In a non-ERISA (i.e., private) disability claim, both you and your physicians likely will have an opportunity to testify in front of a jury.

If We Go to Court, Will There Be a Trial?

In an ERISA case, a disabled claimant does not have the right to a trial. Cases are typically decided by a federal judge on legal papers (i.e., motions for summary judgment).

In a non-ERISA case, a disabled claimant typically will have a right to present a case to a jury at trial.

What Is My Likelihood Of Success?

Every case is unique on its facts, and the only way to gain a better understanding of the merits of your claim is to request a free, no risk consultation with a competent disability lawyer.

What Are the Legal Fees/Costs Involved If I Pursue My Claim?

Other than in unusual circumstances or by mutual agreement of the parties, all matters are handled on a contingent fee. A disabled claimant will not owe any fees or costs unless and until the claim is successfully resolved.

What Legal Services Does the Contingency Fee Cover?

Our contingency fee covers all of the work we do to represent you in your LTD claim.  That includes all of the time and effort we spend speaking with you and preparing you for various events in your claim.

With our contingency fee arrangement, we are able to spend all of the time we need to fully understand you and the details of your claim.  We can take as much time as you need to ensure that you feel supported and keep fully apprised of what is transpiring in your case.  We believe that our fee arrangement promotes the unfettered ability to communicate with you and to delve into the intricacies of your case which will translate directly into a better end result for you.

The only additional expenses or costs to you which are not covered by the contingency fee are out-of-pocket costs.  Costs include such things as medical records and reports and court filing fees (if necessary).  We will pay all of those extra expenses for you over the course of your claim and then when your case settles, we will be reimbursed for those expenses out of your settlement.

How Do You Calculate the Percentage For Your Fee?

There are two main factors that determine the percentage for our contingency fee: value and risk. When we determine our fee, we consider our level of expertise, effort and skill we bring to representing you in your LTD case.  We also need to consider the risk that we are assuming when we agree to represent you.

Our Value

We place a high value on our representation and aim to meet the highest standard in the quality of our legal services.  We believe that our expertise and extensive experience in LTD claims, appeals and litigation will have a direct and positive impact on the success of your claim, as well as on your overall experience in the claim process.

We are confident in our skills and abilities and the high quality legal services we provide to our clients and we have set our fee to reflect our value.

Our Risk

In addition to the value we place on the high-end legal services we provide, when setting our fee percentage, we also need to take into account the inherent risk of handling an LTD case on a contingent basis, particularly when all factors are not known at the time we agree to be your lawyers.

In our experience, it is often difficult to predict early on, as to when your claim will successfully resolve, what steps will be necessary to achieve a successful outcome.  There are a number of variables that will impact the outcome of your claim and so too, impact the amount we will be paid for our time, efforts and expertise.

We are very mindful of the added costs of retaining a disability lawyer to what is already is difficult situation.  As a small professional services business, we strive to balance fairness to clients with the consideration of the time and effort involved along with unknown contingencies and their associated financial risk to our law firm, when we set our contingency fee.

What Is the Possibility That My Case Settles?

On both ERISA and private disability claims, insurance companies frequently will entertain lump sum settlement discussions in situations where disability benefits are approved and being paid out monthly. Conversely, when a claim is denied and the disabled claimant is venturing through the appeal process, an insurance company typically will not discuss any type of claim settlement. However, if a lawsuit is filed and the contested case goes to court, quite often with the court’s assistance, the parties will work together to reach an amicable settlement of the disputed disability claim.

Can I Do This Myself?

Yes and no. Many people certainly “can” fight the insurance company without competent legal counsel. However, the disabled claimant should keep in mind she will be fighting against an experienced claims adjuster, a claims supervisor, a nurse case manager, and often times a cadre of physicians; all with the marching orders to justify a claim denial. With such important consequences at stake for the disabled claim, it really is prudent to seek the assistance of a competent and qualified legal representative as soon as possible.

Do I Need to Hire a Legal “Specialist?

Disability law is a very narrow and focused area of the law. You should certainly strongly consider retaining a disability law specialist. You should also note there is a large distinction between a lawyer specializing in Social Security law, and a lawyer who specializes in Long Term Disability law. When speaking to a prospective lawyer, it is important to ask questions about qualifications, experience, and competency pertaining to ERISA and private disability claims. You should not be afraid to ask questions.

Why Are They Doing This to Me?

Because they can. They’re not expecting you to fight back. Prove them wrong.



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