ERISA Disability Benefits Applications: 6 Common Mistakes

Increase your chance of getting ERISA long-term disability benefits by avoiding these common mistakes and knowing how to deal with your LTD insurance company.

Updated by , J.D. · University of Missouri School of Law

If you become disabled and can't work for several months, you could qualify for long-term disability (LTD) benefits under an employer-sponsored ERISA long-term disability plan—if your employer provides an LTD policy as a benefit.

But getting long-term disability benefits under your employer's insurance policy isn't always easy. The process can be long and grueling, and applicants don't always get the results they want. Before you apply for disability benefits under an ERISA disability plan or another employer-sponsored plan, learn about the law. The application process is crucial to your chances of getting benefits.

What Are ERISA Long-Term Disability Benefits?

The majority of disability insurance plans offered to employees are governed by a federal law called ERISA (the Employee Retirement Income Security Act). If you apply for long-term disability benefits and the insurance company denies your claim, ERISA gives you the right to pursue a lawsuit in federal court.

ERISA also governs short-term disability insurance policies provided by your employer. Short-term disability insurance usually pays benefits for three to six months (or more, depending on your policy), at which point long-term disability benefits would kick in, if you're still unable to work. ERISA short-term disability benefits typically pay approximately 60% of your wages, but you aren't usually eligible for benefits for the first week you're unable to work. Any illness or injury that prevents you from working can qualify for short-term disability benefits. While this article is mainly about long-term disability policies, most of the same guidance applies to short-term policies.

Why Is Your Initial ERISA Application So Important?

It's tough to overturn a denial of ERISA disability benefits in court, because the insurance company only needs to show a small amount of evidence to support its decision to deny benefits.

LTD insurance companies are notorious for denying well-supported disability claims by saying your medical evidence is incomplete, your doctors' reports are biased, and a host of other dubious reasons. The problem is most acute at the initial level of an LTD claim, when many insurers reject claims almost automatically.

If you make errors during the application process or don't provide enough support for your claim, your chances of winning will be slim. This means that your initial claim should be as strong as possible to reduce the odds of denial in the first place.

What Are the Most Common Mistakes Made on Long-Term Disability Applications?

Applying for ERISA long-term disability benefits can be challenging, and making a mistake in the process could jeopardize your ability to obtain benefits. Below are six common mistakes that people make when filing for benefits and how to avoid them.

Mistake #1: Assuming You Have Enough Evidence for Your Claim if Your Employer Says You're Too Sick to Work

The long-term disability insurance company, not your employer, will be paying your long-term disability benefits. Don't assume that your employer's opinion regarding your ability to work is sufficient to qualify for benefits. The insurance company will decide when you meet the legal definition of disability under the terms of its policy.

Mistake #2: Relying Solely on the Advice of Your Human Resources Department

While human resources (HR) personnel at your company might mean well when giving you advice, they're not trained in interpreting insurance policies, and they have no influence over the insurance company for the most part. Remember, your employer and the long-term disability insurance company are separate businesses, and the LTD company doesn't have to follow through on any guarantees made by your employer.

Mistake #3: Documenting Your Disability Claim Using Only the Forms Provided by the Insurance Company

Your doctor usually has to answer certain questions on the insurance company forms. But don't leave it at that—you'll likely need further explanation or information to prove your disability. Sit down with your physician and explain the terms of your disability insurance policy. Request that your doctor complete a report that fully explains how your sickness or medical condition is preventing you from performing the "substantial and material" duties of your occupation. Even if your doctor charges you for such a report, it is well worth the money.

Mistake #4: Participating in Activities That Your Doctor Warned Against

The insurance company will be watching your activities. If you do things your doctor said you shouldn't do, it might look like you're trying to cheat the insurance company. (The insurance company won't know whether you're in pain during an activity or that it takes you three days to cover from an activity.)

If the insurance company sends you an activity log to complete, that only confirms that you're being watched. Follow your doctor's instructions carefully.

Mistake #5: Using the Insurance Company's Lawyers to Help You File for Social Security Benefits

If you're approved for long-term disability benefits, your insurance company will generally require you to file for Social Security disability benefits. Sometimes the insurance company's lawyers, or an affiliated law firm, will offer to assist you with the application process.

Think twice before using one of these attorneys. There have been cases where an insurance company's lawyers guide applicants toward choosing certain disabilities on their Social Security disability benefit applications, and later those disability selections make it harder for the applicants to prove their long-term disability claims.

Mistake #6: Working With a Lawyer Who Isn't Experienced in ERISA

ERISA, the law that governs employer-paid long-term disability insurance, is a complicated law, and many rules govern the disability application process—from the strict deadlines to what evidence is allowed during an LTD appeal. The attorney you hire to represent you must have knowledge and experience in this area of law.

How to Deal With Your Long-Term Disability Company

After you suffer an illness or injury that leaves you unable to work, the last thing you'll probably want to do is deal with your long-term disability company—and for good reason. While the Employee Retirement Income Security Act of 1974 (ERISA) was designed to protect employer-provided benefits including LTD insurance, insurance companies have learned how to use ERISA as a shield to protect them from paying deserving claims.

Here are a few points to keep in mind when dealing with your insurance company or plan administrator.

Request the LTD Policy

Before even filing your disability claim, request a copy of the plan documents (the entire policy) and the summary plan description from your HR department, the plan administrator, or the long-term disability insurance company. Under ERISA, you have the right to receive copies of these documents after you send a written request to the plan administrator.

Like all correspondence with your insurer, the request for documents should be sent via certified mail with return-receipt requested. Insurance companies misplace important paperwork all the time; don't let it happen to you.

When you get the application, look at the eligibility requirements, such as:

  • how long you must have worked for the company
  • the minimum number of hours required
  • the length of the elimination period (how long you must be unable to work), and
  • any policy exclusions (such as pre-existing or self-inflicted injuries).

For more information, see Nolo's article on common LTD policy terms.

Know Your Deadlines

There will be numerous deadlines you'll have to meet. Your policy will outline many of these deadlines, and it's important that you write them down—especially your time frame to file an appeal. Failure to meet deadlines can mean you won't get disability benefits.

Get Copies of Your Medical Records

You need to know what your medical records say about your condition, because this is the same information the insurance company will use to approve or deny your claim. Your medical records must contain objective proof of disability, such as an MRI for back problems or a mental Residual Functional Capacity form filled out by your psychiatrist for depression or bipolar disorder.

Use Your LTD Application to Convince the Company

When filling out paperwork, remember that the disability application provided by your insurance company might be designed to get you to answer questions in a way that might allow them to deny the claim. Answer all questions truthfully, but completely. If you have "good days and bad days," be sure to point that out, and describe what a bad day looks like for you. if there isn't enough room for you to explain your impairments or answer a question fully, attach separate pages where appropriate.

Choose Your Date of Disability and Last Day of Work Carefully

Review the actual policy (not the summary plan description) to determine how a disability is defined. That will help you identify the actual date that you can be considered disabled under the insurance plan.

The last day you worked, also known as LDW, is also an important date. Gather as many documents as possible that support your disability before you stop working. In one case, a man quit his job and applied for LTD benefits, even though the doctor's medical records didn't show he was disabled yet. He was ultimately denied disability benefits; plus he lost his job and health insurance.

Keep Good Records and Get Things in Writing

When interacting with your claims representative or any other insurance company personnel over the phone, keep a written record of whom you spoke with, what you discussed, and when the call took place. When your insurer provides you with important information over the phone, don't be afraid to ask, "Can I get that in writing?"

Likewise, don't rely on the word of the HR professionals in your office. While they probably mean well, they're unlikely to be well-versed in the specifics of your long-term disability policy. When in doubt, get it in writing.

Watch What You Say and What You Do

It's important to maintain a healthy skepticism in all interactions with your insurance company or plan administrator, because the slightest, most innocent remark could spell trouble for your claim. For instance, try not to make calls to your insurer from anywhere other than your home. If the person on the other end hears noise in the background (like the sound of a car, shopping mall, or even children on a playground), it could be used against you to show that you can work.

Similarly, many insurance companies have fraud detection departments that conduct video surveillance of disability applicants, so don't perform any activities that are restricted by your doctor. The old saying that "it's not paranoia if they're really out to get you" could have been coined with an LTD insurer in mind.

Beware of Insurance Company Doctors

After you file a claim, your insurance company might require you to attend a consultative examination with an "independent" physician. In some cases, these doctors perform only perfunctory examinations and write reports indicating that you're either exaggerating your symptoms or making them up altogether.

If you aren't sent for a consultative exam, a physician employed by your insurance company will review your medical records and, more often than not, might decide that your allegations aren't supported by the medical evidence.

Make Your Consultative Exam Count

Before attending a consultative examination arranged by your insurance company, consider making a list of the ways your impairments affect you on a daily basis. Are you able to go shopping, cook meals, clean the house, take showers, or walk up and down steps? Use this list at the appointment to remember all of your limitations. If you fail to mention that you're having difficulties in a certain area, the doctor will presume that you have no restrictions.

Do not attempt to fake or exaggerate the severity of any of your medical issues, as doctors are trained to look for this. (Some of them, particularly those working for insurance companies, even detect it when you're not exaggerating or "malingering" (faking your symptoms).)

Finally, when you go to your consultative exam, take note of the time your exam began and when it ended. It's surprisingly common for exams to last for as little as 10 or 15 minutes, but this fact isn't usually reflected in the doctor's report.

Ensure the LTD Company Has Key and Up-to-Date Medical Records

Insurance companies will generally request your recent medical records at their expense, but unfortunately, they often fail to ask for or obtain important records. Ask your insurer what records are being used to decide your case, and let them know if anything relevant is missing. Also, keep your insurance company up-to-date on what medical treatment you're currently receiving, so it can update your records as needed.

Consider Hiring an Attorney to Protect Your Rights

Whether you're thinking about filing an LTD claim or have already been denied LTD benefits, consider hiring an experienced ERISA disability attorney. Your attorney will:

  • interact with the insurance company on your behalf
  • meet the policy's deadlines
  • supplement your file with favorable evidence from your doctors or employers, and
  • handle any settlement negotiations.

If necessary, your lawyer can also file a lawsuit against your insurance company in federal court. Most ERISA disability attorneys will not charge a fee unless you win your case. You may be able to arrange a free consultation with an ERISA attorney in your area.

Read our article on why you might want to hire an LTD lawyer.

Originally written by Ben Glass, a long-term disability attorney with BenGlassLaw. Mr. Glass practices law in Virginia.

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