At Mehr Fairbanks Trial Lawyers, we understand the intricate nature of long-term disability claims and appeals. The appeal process in a long-term disability claim is vital as it provides a platform for claimants to challenge an unfavorable decision made by the insurance company. Often, depending on the insurance policy terms, the appeal process is even required before you can file a lawsuit challenging the insurance company’s decision. However, the sophistication needed in these cases requires more than just a basic understanding. And, importantly, the way you communicate with the insurance company may likely be used against you.

DOES AI REALLY HELP YOUR CLAIM?

Technology often lacks the human emotion that may be necessary to humanize you for purposes of the appeal – or later, for the Court.

Although technology advancement, particularly AI, has brought convenience to many aspects of our lives, it’s important to tread carefully when considering its use in the claim or appeal process for long-term disability claims. While AI assistance might seem inviting due to its speed and ease, it lacks the human touch necessary for these complex endeavors. AI, by nature, lacks the empathy and insight inherent in human interaction. For those who are going through the distress of dealing with a disability, it may be difficult expressing their concerns or articulating their situation to the insurance company. AI likely won’t capture the full extent of what a disabled claimant suffers on a day-to-day basis.

Insurance companies often use communication skills, detailed summaries, and information from claimants as evidence to prove the ability to work. Machine-generated appeals or summaries may lack the necessary nuances or fail to fully capture the claimant’s situation. AI also lacks the ability to understand and convey emotions, a significant factor considering the individualized nature of disability claims. In such sensitive cases, human involvement and understanding are indispensable.

Insurance companies will often seize any angle they can to minimize or deny the payout for a claim. One particular approach that these companies have been known to employ involves the exploitation of concise, well-written summaries, emails, or medical records provided by a claimant. Moreover, they might even leverage such articulated documents that were compiled with the assistance of AI. For instance, the company might argue that the claimant is not disabled or ill to the extent they claim if they are capable of putting together a lengthy medical history or appeal. By suggesting that the very ability to write a comprehensive, structured document contradicts the severity of the claimed disability or medical condition, the company may try to avoid its obligations and refuse to approve benefits.

The insurance company may not even acknowledge its view of your “detailed” appeal until you receive the final denial letter that alleges you were able to communicate and provide detailed information. If this happens, it is unlikely that you will be able to defend yourself by explaining that you utilized AI to assist you because once the insurance company issues a final denial of your benefits, you may not be able to submit any additional information in support of your claim.

PITFALLS OF AI

AI is not perfect. There is absolutely room for error in the information it generates based on the inquiries you input. There is a significant risk that – without careful review – you may even unknowingly provide information to the insurance company that is simply wrong. By failing to catch incorrect information that AI generated for you, you may be subject to the incorrect information being used against you unfavorably by the insurance company. If the appeal process finalizes without this information being corrected, you are at risk of being bound to that information without a way to dispute it if you file a lawsuit. This, combined with the lack of human emotion, the risk of the insurance company using detailed communications in opposition to you, and the privacy concerns related to your information, demonstrate the dangers of relying on AI to support your claim.

It is important to be up-to-date on the software you are relying on. Is that information protected? Are there privacy concerns? You may unknowingly put your own privacy at risk by inputting your confidential medical and personal information in AI software.

CONTACT US TODAY FOR A FREE CONSULTATION

Professional advice and representation in these matters carry more weight than any AI can provide. Mehr Fairbanks Trial Lawyers is ably equipped to navigate the complex terrain of disability claims and appeals. Our law firm provides personalized attention and drafts comprehensive appeals which articulate your story and situation compellingly. We keep abreast of the ever-evolving rules and regulations surrounding long-term disability claims, appeals, and ERISA to ensure we are always poised to fight for you.

Bear in mind, presenting well-articulated documentation is perfectly within your rights. If an insurance company tries to barter with such unscrupulous semantics, Mehr Fairbanks Trial Lawyers can help protect your rights and help you get the compensation you deserve. Reach out to us at (800) 249-3731 for a free consultation today.

Do you ever get the feeling that someone is watching you? It may be happening, and it may be your insurance company!

Do you have a long term disability claim with an insurance company? Imagine waking up in the morning, attending to your daily routine, all while unaware that you could be under the watchful eyes of your insurance company as part of their long-term disability claim investigation. Can they do that?? Yes, it’s possible! Insurance companies occasionally employ video surveillance tactics, photography surveillance, or deep-dive into your social media activities, looking for evidence to deny disability benefits.

I’VE BEEN RECEIVING BENEFITS FOR YEARS – IS SURVEILLANCE STILL POSSIBLE?

Short answer: yes!

Whether your claim has been approved for 1 month, 5 years, or is still pending an initial claim decision, the insurance company can perform a variety of investigation tactics into your claim. It is possible that the insurance company may schedule you to attend an in-person medical evaluation. In this case, don’t be surprised if the day of the evaluation arrives and – unbeknownst to you – someone is camped out down the street ready to video you leaving for the evaluation, traveling to the evaluation, or following you once you leave the evaluation. Do you live in a rural area where access to your home is scarce? That may not matter; the surveillance may occur in the parking lot of the evaluation. It is even possible that they may follow you after the evaluation is over and continue recording or taking pictures (even if you go inside a restaurant with your spouse – yes, that can happen!).

WAIT- CAN THEY DO THAT?

Some may wonder, how is such a practice legal? The answer lies in the fine print of your insurance policy agreement. Most states have laws in play that allow insurance companies to use such surveillance methods. While it might feel intrusive, they do it in the name of preventing insurance fraud.

Bear in mind, what you might perceive as an innocuous update on Facebook or an innocent post on Instagram could be misconstrued and used against you. In these days of digital footprints, it’s crucial to be mindful of the information we share online, especially when pursuing a long-term disability claim.

WHAT INFORMATION CAN THEY GET?

If you are in a public space, or provide any information online publicly, that information is at risk of being obtained by the insurance company. Sometimes even something simple can be misinterpreted or misconstrued by an insurance company without context. Therefore, it is not surprising if the insurance company may use against you anything it finds through surveillance and/or social media investigations.

WHAT HAPPENS IF MY CLAIM IS DENIED BECAUSE OF SURVEILLANCE OR AN ONLINE INVESTIGATION?

If your long-term disability claim is denied, it is likely that you will be given an opportunity to appeal that denial. The appeal process is typically a very crucial part to your claim after a denial has occurred. Ensuring that the denial is appealed properly and that all necessary information has been provided to the insurance company is key. If you believe you are being unfairly surveilled or if your claim has been denied on the grounds of such investigations, we at Mehr Fairbanks Trial Lawyers are here to help. You should not be alone navigating these challenging issues. Call us today at (800) 249-3731 to discuss your case.

Of note, the 6^th Circuit, which is relevant Kentucky, has discussed not using summary judgment procedures or bench trials to decide ERISA actions, but instead reviewing the merits of the action based solely upon the administrative record with findings of fact and conclusions of law. It was suggested that the courts only consider evidence outside of the administrative record for limited exceptions. Wilkins v. Baptist Healthcare Sys., 150 F.3d 609, 619 (6th Cir. 1998) (Gilman, J., concurring).

For example, when insurance companies try to determine whether or not to award disability benefits, they may seek to hire their own physicians to review the medical records on file to reach a determination. This determination may or may not conflict with the medical opinions of the treating physicians. When there are conflicting opinions between the physicians hired by the insurance company and the treating physicians, however, this will likely lead to material facts in dispute. This is when a bench trial may be the most appropriate way for courts to rule on ERISA denial-of-benefits cases. Like in the example outlined below:

In October of 2013, Anita Tekmen started new employment with Adsum, Inc., as a Financial Analyst. This position required “reasoning, cognitive exertion, and the ability to hear and understand easily.” Tekmen, 55 F.4th at 955. Simultaneously, through her new position, Ms. Tekmen received coverage under a long-term disability insurance policy provided by Reliance Standard Life Insurance Company. Unfortunately, Ms. Tekmen was involved in a rear-end car accident that drastically and negatively impacted her ability to continue working in her new position as a Financial Analyst.

Ms. Tekmen visited several physicians and specialists hoping to come up with a treatment plan that would ultimately see her return to work full-time. After her accident, however, Ms. Tekmen was unable to perform her work duties consistently and efficiently as she continued experiencing “dizziness, sensitivity to light and noise, and [had] difficulty concentrating.” Id. Despite her continued visits to specialists and treating physicians, Ms. Tekmen’s symptoms were worsening at a steady rate. Nearly two years later, Ms. Tekmen decided to file a claim for short-term disability benefits with Reliance and they granted her claim. Despite her best efforts, however, it became clear that Ms. Tekmen would not be returning to full-time employment as her symptoms continued to worsen.

Thus, two months after she submitted her claim for short-term disability benefits, she sought to convert her benefits into long-term disability benefits. Reliance denied Ms. Tekmen’s claim for long-term disability benefits and determined that she was not “Totally Disabled” as defined by her disability insurance plan. Ms. Tekmen brought an action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. Section 1132(a)(1)(B). Ms. Tekmen argued that the denial of benefits violated ERISA. The district court conducted a bench trial in accordance with Federal Rule of Civil Procedure 52 and awarded judgment to Ms. Tekmen. The district court primarily relied on the medical opinions of Ms. Tekmen’s treating physicians to determine that she was “Totally Disabled” as defined by her disability insurance plan. Reliance appealed and the Fourth Circuit affirmed the lower court. The Fourth Circuit held that Ms. Tekmen was entitled to long-term disability benefits under the terms of the plan. By bringing an action under ERISA and moving for a bench trial in accordance with Federal Rule of Civil Procedure 52, Ms. Tekmen was able to eventually be awarded long-term disability benefits.

If you have questions about your benefits or have experienced a situation similar to Ms. Tekmen, call us today at (859) 225-3731 or visit us here to request a free consultation with one of Mehr Fairbanks’ attorneys.

*The information contained within this post should not be considered legal advice or legal representation.

Most employers provide some type of disability insurance coverage for their employees. It might be time to refresh your memory on what your employer provides you with specifically. In an unpublished opinion, the Ninth Circuit recently determined that an employer provided disability insurance company was within its rights to reduce an employee’s disability benefits by $800,000. The $800,000 came from a recent personal injury settlement the employee received on a completely unrelated matter. Haddad v. SMG Long Term Disability Plan, No. 16-CV-01700-WHO, 2021 WL 2187979 (E.D. Cal. May 28, 2021).

The case turned on the legal distinction between “offsets” and “exclusions” and “limitations” in regard to long-term disability plans. This marginal difference may be the difference between receiving the anticipated total value of long-term disability benefits or having that total value later diminished. Exclusions and limitations carve out areas from the scope of an insurance policy’s coverage. Offsets reduce the total amount owed for covered claims.

For example, in the case mentioned above, Mr. Haddad was an employee that received long-term disability benefits from his employer-sponsored insurance plan after becoming disabled. He received an $800,000 settlement for an unrelated matter and his disability benefits were reduced, or offset, by the amount he received in the settlement. Mr. Haddad challenged this offset and ultimately lost. The Ninth Circuit reasoned that offsets are distinctly different from exclusions and limitations and therefore the employer-sponsored insurance plan was within its rights to reduce Mr. Haddad’s disability benefits by the amount he received in his settlement.

The Ninth Circuit further stipulated that the employer-sponsored insurance plan was clear and unambiguous when it mentioned specifically in its long-term disability plan that disability benefits would be offset by any payments that were the result of a settlement or judgment to the insured employee. This long-term disability plan specifically did not require that the offsets to settlements be for related injuries. This long-term disability plan provider was also not required to draw attention to the language in its plan related to offsets based on settlements or judgments. Thus, even though Mr. Haddad received the settlement for something unrelated to his disability insurance it was still deemed okay for the employer-sponsored insurance provider to reduce his disability benefits by the settlement amount.

If you have questions about your disability insurance plan or have experienced a situation similar to Mr. Haddad, call us today at (859) 225-3731 or visit us here to request a free consultation with one of Mehr Fairbanks’ attorneys.

*The information contained within this post should not be considered legal advice or legal representation.

On May 5, 2020, Mehr Fairbanks posted a blog that outlined how COVID-19 can impact the claims and appeals process for both our short-term and long-term disability clients. That blog post can be found here. However, since the original post, the Department of Labor has updated the guidance on the deadlines and extensions that may impact short-term and long-term disability claims and appeals under ERISA.

Because ofthe COVID-19 National Emergency, it was first announced that deadlines related to filing and appealing claims under ERISA were tolled until a certain amount of time after theNational Emergency ended. Originally, ERISA deadlines were suspended until 60 days after the end of the National Emergency. However, because of certain restrictions in the authority to extend deadlines for longer than a period of one year, the suspension of ERISA deadlines has been clarified.

With the COVID-19 National Emergency continuing, the Department of Labor has provided further guidance that may impact your time to submit a claim or appeal of your disability claim.

EBSA Disaster Relief Notice 2021-01 outlines that the one-year extension applies separately to each extended deadline. The applicable deadlines are extended until the earlierof (1) one year from the date action would be required (such as the date of a denial letter or end of benefits for example), or (2) 60 days after the National Emergency ends. It is important to note, that the “disregarded” or suspended deadline period cannotexceed one year.

What does this mean for you? That depends. For example, if an insurance company denied your LTD claim on October 1, 2022 and would typically provide you with 180 days to appeal that denial, the 180-day appeal deadline is now extended because the National Emergency continued at the time your claim was denied. Thus, you would have (1) one year + 180 days, or (2) 240 days after the end of the National Emergency, to appeal the denial of your LTD claim. This is simply an example; every insurance policy is differentand deadlines may vary depending on your specific denial.

It is important to remember that the National Emergency can have an impact on your claim and/or appeal. Every case must be analyzed separately to determine what the extension of time looks like for each specific claim. Therefore, it is crucial to seek a consultation if you have any questions regarding filing a disability claim or appeal.

Call us today at (859) 225-3731 or visit us here to request a free consultation with one of Mehr Fairbanks’ attorneys.

*The information contained within this post should not be considered legal advice or legal representation

Recently, a federal judge in Texas court ruled in favor of retired NFL player, Michael Cloud, determining that the administrators of The Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Plan”) violated their fiduciary duties under ERISA in denying Cloud a full and fair application review. Cloud’s appeal concerned his eligibility for the highest level of disability benefits under the Plan, which was subsequently denied by the Defendants.

Cloud boasts an impressive NFL career, playing 7 seasons, including for the New England Patriots during their 2004 Super Bowl winning year. Cloud additionally played for the Kansas City Chiefs and the New York Giants between 1999 and his retirement in 2006. During his career, Cloud states that he injured “virtually every aspect of his body” as well as endured numerous cases of head trauma known as “dings” (an instance where a player’s vision goes black due to a hard hit to their head). One of Cloud’s last head injuries sustained in 2004 led to his early retirement, as the frequency and severity of the injuries had caused “cumulative mental disorders.” In 2010, Cloud began receiving benefits under the retirement Plan, and was found to be “totally and permanently” disabled in 2014. Subsequently, in 2016 Cloud applied for reclassification under the Plan but was denied both initially and on appeal.

Cloud brought an action against the Plan in 2020, alleging that his application for reclassification was never fully reviewed by the Defendants. He alleged that the Defendants (including six board members for the Plan) did not adequately review his over 1000-page application. Instead, a paralegal was made to write a summary of the application for the administrators. It has been speculated that the decision on the matter was already drafted before the administrators viewed the summary of the new appeal, as it cited to incorrect documents that belonged to the wrong benefits plan. Further, the denial letter included contradicting information with written minutes taken at the board meeting during their deliberation; the minutes state that the only reason for the denial was the Cloud did not show by clear and convincing evidence the existence of a new injury, while the letter additionally states that the application was made outside of a 180-day deadline among other timing issues. During closing arguments, counsel for Cloud stated that the issue of unfair denial is not new nor exclusive to Cloud, and that the Plan consistently failed to fully review applications by reviewing as many as 50 at a time with no discussion of the specific cases.

The Defendants argued that the payment of benefits was not appropriate, as Cloud did not sustain any new injuries between his first application in 2014 and his application for reclassification in 2016. They further opined that Cloud’s current benefits category was “exactly where he should be” and that he was one of the few beneficiaries to bring an action against the Plan.

The Court did not agree, stating that the denial was incorrect and Cloud’s reclassification application should be granted and he should be placed in the highest benefits category due to the injuries sustaining during his career. Judge Karen Gren Scholer stated that the Plan obviously spent “virtually no time in rubber-stamping the decision.” She further stated that the Plan’s practice of reviewing player’s applications was “wrong and absurd.” Regarding the argument that the low number of cases brought against the Plan is evidence that the decision was correct, Judge Scholer stated that this essentially constituted an “if it ain’t broke, don’t fix it” argument and thus was rejected. She further speculated that it is incredible that under the Plan only 30 former players (all of whom have injuries causing paralysis) are at the highest benefit tier. Thus, she stated that, “The Plan is broke and it’s time to fix it.”

Both Cloud and his family are grateful that the long battle for benefits due to him under the Plan is finally over. Cloud described the Plan’s denial and its effects had “tortured [his] family for years without caring.” This decision is not only a victory for Cloud and his family, but other members of the same or similar retirement plans who have been denied full and fair review of applications by plan administrators. In fact, even outside of the realm of plans relating to former athletes, the decision solidifies the fiduciary duties owed to beneficiaries under ERISA and sets the standard for individualized, thorough, and fair reviews of applications and benefit determinations.

Recently, a federal judge in Texas court ruled in favor of retired NFL player, Michael Cloud, determining that the administrators of The Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Plan”) violated their fiduciary duties under ERISA in denying Cloud a full and fair application review. Cloud’s appeal concerned his eligibility for the highest level of disability benefits under the Plan, which was subsequently denied by the Defendants.

Cloud boasts an impressive NFL career, playing 7 seasons, including for the New England Patriots during their 2004 Super Bowl winning year. Cloud additionally played for the Kansas City Chiefs and the New York Giants between 1999 and his retirement in 2006. During his career, Cloud states that he injured “virtually every aspect of his body” as well as endured numerous cases of head trauma known as “dings” (an instance where a player’s vision goes black due to a hard hit to their head). One of Cloud’s last head injuries sustained in 2004 led to his early retirement, as the frequency and severity of the injuries had caused “cumulative mental disorders.” In 2010, Cloud began receiving benefits under the retirement Plan, and was found to be “totally and permanently” disabled in 2014. Subsequently, in 2016 Cloud applied for reclassification under the Plan but was denied both initially and on appeal.

Cloud brought an action against the Plan in 2020, alleging that his application for reclassification was never fully reviewed by the Defendants. He alleged that the Defendants (including six board members for the Plan) did not adequately review his over 1000-page application. Instead, a paralegal was made to write a summary of the application for the administrators. It has been speculated that the decision on the matter was already drafted before the administrators viewed the summary of the new appeal, as it cited to incorrect documents that belonged to the wrong benefits plan. Further, the denial letter included contradicting information with written minutes taken at the board meeting during their deliberation; the minutes state that the only reason for the denial was the Cloud did not show by clear and convincing evidence the existence of a new injury, while the letter additionally states that the application was made outside of a 180-day deadline among other timing issues. During closing arguments, counsel for Cloud stated that the issue of unfair denial is not new nor exclusive to Cloud, and that the Plan consistently failed to fully review applications by reviewing as many as 50 at a time with no discussion of the specific cases.

The Defendants argued that the payment of benefits was not appropriate, as Cloud did not sustain any new injuries between his first application in 2014 and his application for reclassification in 2016. They further opined that Cloud’s current benefits category was “exactly where he should be” and that he was one of the few beneficiaries to bring an action against the Plan.

The Court did not agree, stating that the denial was incorrect and Cloud’s reclassification application should be granted and he should be placed in the highest benefits category due to the injuries sustaining during his career. Judge Karen Gren Scholer stated that the Plan obviously spent “virtually no time in rubber-stamping the decision.” She further stated that the Plan’s practice of reviewing player’s applications was “wrong and absurd.” Regarding the argument that the low number of cases brought against the Plan is evidence that the decision was correct, Judge Scholer stated that this essentially constituted an “if it ain’t broke, don’t fix it” argument and thus was rejected. She further speculated that it is incredible that under the Plan only 30 former players (all of whom have injuries causing paralysis) are at the highest benefit tier. Thus, she stated that, “The Plan is broke and it’s time to fix it.”

Both Cloud and his family are grateful that the long battle for benefits due to him under the Plan is finally over. Cloud described the Plan’s denial and its effects had “tortured [his] family for years without caring.” This decision is not only a victory for Cloud and his family, but other members of the same or similar retirement plans who have been denied full and fair review of applications by plan administrators. In fact, even outside of the realm of plans relating to former athletes, the decision solidifies the fiduciary duties owed to beneficiaries under ERISA and sets the standard for individualized, thorough, and fair reviews of applications and benefit determinations.

How do I apply for long-term disability benefits?

You must follow the process and procedure outlined by your long-term disability plan. Your employer’s human resource department is required to provide you with a summary of your plan and its benefits. They may be able to help you fill out the forms.

I received a letter saying my long-term disability benefits were denied. What should I do?

If your long-term disability claim is denied, you may have a short period in which to file an appeal. This time period will be set forth in your long-term disability plan documents. (That should have been supplied by your employer.) It is strongly recommended to seek experienced ERISA help in preparing your claim appeal. You must ensure that you meet all of the legal terms and conditions of your plan. Most people don’t realize, until it is too late, that the record you submit is ALL that you may be able to use later in Court, so it is VERY critical to get experienced legal help with any appeal.

How does a long-term disability insurance company decide if I qualify for long-term disability benefits?

A long-term disability insurance company will review the records associated with any medical examinations to look for limitations and restrictions that doctors have indicated in order to determine whether you meet the plan’s definition of disability.

Can the insurance company use my social media history against me to deny my benefits?

An insurance company can use whatever evidence is available to them in determining whether you meet the plan’s definition of disability, including social media posts showing your activities. It is recommended to not post pictures on any social media because they can display an inaccurate portrayal of what is going on with your body! We all smile when having our picture taken – even if we are in pain! We all do things for 10 seconds that are not reflective of what we can do continuously for a work day. If someone posts a video of you, then the insurance company can find that and claim it is proof that you can work, even though you cannot sustain that activity for a long period of time.

Does the long-term disability insurance company have to give me information about my insurance policy?

Yes. The law requires them to give you documents.

If I can no longer work, should I quit or use any FMLA or PTO?

If you can no longer work, you can use your PTO or FMLA to continue to be paid while you process any claims for disability. Always be honest with your employer about what you can’t do. It is best to ask for the employer to make accommodations for you if you think you can work a different job that they have available. Do not simply quit your job without explanation. Let your employer decide whether they can continue to use you in your condition.

What if I am unable to work due to a mental illness?

A mental illness which prevents you from working may be covered or expressly excluded by the terms of a long-term disability policy. Even if it is expressly excluded, the physical problems associated with the mental illness may qualify you for long-term disability benefits. The exact language of your long-term disability plan is key to this determination.

Am I still a company employee while I’m on long-term disability?

Your employer’s policies will determine whether you are still considered an employee while on long-term disability.