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Denial of Long Term Disability (LTD)

LTD and ERISA Lawyers: Riverside, Orange & San Bernardino Counties

Technical or Administrative Reasons

There are important technical or administrative reasons that could result in a claim denial. One of the more common ones is missing a filing deadline. ERISA has strict filing deadlines that you must meet in order to keep your claim viable. It's important to keep track of them on a calendar and to not miss them. Once you miss a filing deadline, it's usually difficult if not impossible to fix it.

Medical Documentation Insufficient or Incomplete

Your medical records are the foundation of your disability case. ERISA disability claims are both decided "on the record." Whatever is in your medical records at the time the insurance carrier is deciding your claim, is what they will use in their decision-making to either approve or deny your claim.

Therefore, your medical records must be consistent, detailed, persuasive, and complete in order to properly support your disability claim.

You Failed to Tell Your Doctor

As soon as you make the decision to apply for LTD benefits, you must tell your doctor and consistently report all your symptoms with detail and accuracy. You have a lot to do with how complete and detailed your medical records are going to be because it's you that tells the doctor what symptoms you have, how often and for how long you have them, how severe or intense they are, how they interfere with your daily activities, and how they impair your ability to perform the essential duties of your job.

Unless you tell your doctor these things, he/she will not know this information, and consequently will not be able to enter it into your chart. 

Telling your doctor about your symptoms is especially important when it comes to subjective, self-reported symptoms. "Subjective" symptoms are what you feel and report to your doctor. They are your own perceptions, such as pain and fatigue, which only you can feel and only you can know. It's often good to keep a daily diary of such symptoms at home, so that when you go into the doctor's office to see the doctor, you can show the doctor your symptoms and how they affect your functionality.

Reporting "pain" or other subjective symptoms is sometimes best done on a 1-10 scale, where "1" is minimal pain and "10" is the type of pain that takes you to the Emergency Room. However, no matter how you communicate with your doctor, be sure to explain to him/her your symptoms in detail and how they impair your functional ability. By functional ability, explain to your doctor what you can and cannot do at home. Be specific ... can you do the dishes, take out the trash, lift and carry groceries, bend, stoop, walk, stand, etc? Relate those restrictions to the demands of your job when you were working and describe what specific job duties you could no longer perform when you stopped work. 

You Didn't Review Your Medical Records

Under HIPAA, CFR § 164.526, you as a patient have the legal right to review, copy, inspect and to request an amendment to the medical information the doctor puts into your medical records. We recommend that you do that periodically to make certain that the information about your disability that you tell the doctor is getting into the chart. If it's not accurate or is incomplete and fails to adequately address your disability, speak to the doctor about that and ask him to amend the chart, if it is appropriate to do so.

Objective Evidence That Supports Your Claim

In addition to "subjective" evidence (which are the symptoms you report to your doctor), insurance carriers and judges alike want to see if there is sufficient "objective" evidence that "proves" your symptoms are real and that they are as disabling as you report.

Objective evidence is the kind of evidence that a doctor would find when performing a physical examination or taking laboratory tests, x-rays, or imaging studies. For example, on examining you, an orthopaedic doctor might find that your knee is swollen and inflamed and document that in the chart. Or, blood tests might show that your sedimentation rate (ESR) or C-Reactive Protein (CRP) are elevated. These tests are laboratory markers of inflammation and would constitute objective proof of inflammation in your body that would be expected to give rise to pain.

An MRI scan of your back might show degenerative disc disease, foraminal narrowing, and spinal stenosis, all of which would be objective evidence to "prove" that you have a basis for having back pain.

The objective findings must generally be more than "mild" to be persuasive. For example, of the MRI scan of your lumbar spine is normal or describes only mild degenerative disc disease, an insurance carrier or a judge might conclude that the back pain you describe as being severe and disabling is not supported by objective evidence (i.e., your MRI).

However, there are medical conditions that can give rise to severe pain and make it impossible for you to work that may have no "objective" medical findings. For example, fibromyalgia is a medical condition where laboratory tests, x-rays, MRI scans, and other "objective" measures may be completely normal, and yet a patient suffering from fibromyalgia may be totally disabled from performing even sedentary work (a "desk job").

The same can be said for self-reported symptoms such as chronic fatigue, headaches, and other disabling conditions for which there are few or no objective findings.

For such conditions, a doctor's detailed medical notes, explaining the condition and carefully documenting the symptoms and the functional impairments they produce, are all the more important to successfully getting a disability award, when there is no "objective" evidence to support your claim.

Courts have held that if the medical condition is the kind where it is not possible to produce any "objective" evidence with which to diagnose it or to prove-up its severity, then insurers and judges cannot reject a disability claim on the basis that there is no objective evidence. 

Under controlling Ninth Circuit law, with respect to both ERISA law and Social Security disability law, conditioning an award on the non-existence of objective evidence that cannot exist, is arbitrary and capricious. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 674-675 (9th Cir. 2011). An insurer may not impose a requirement on a beneficiary to provide objective evidence for a condition that "cannot be objectively verified or measured." Fair v. Bowen, 885 F.2d 597, 601-602 (9th Cir. 1989)

However, when there is a lack of objective evidence because objective evidence cannot exist, good medical documentation by your physician of your condition (e.g., fibromyalgia) and the impairments it is causing, is critical to "overcome" that lack of objective evidence.

Medical Records: Nexus Between Diagnosis and Functional Impairments

It's not enough for a doctor to document your diagnosis, the "subjective" symptoms that you self-report, and the "objective" physical examination, laboratory, x-ray and imaging abnormalities that support your diagnosis and your symptoms. All of that is "necessary," but it is not "sufficient" in order to receive a favourable disability benefit decision.

What's also required is that your doctor must "connect" your medical findings with the functional impairments that they cause by drawing a "nexus" between them. For instance, if you have severe back pain (a self-reported, subjective "symptom"), and your MRI scan shows advanced degenerative disc disease and spinal stenosis in the lumbar spine ("objective" evidence), then in addition to documenting these medical findings, your doctor must also document that, because of your back pain, you are unable to perform specific functions, such as, by way of example, that you are unable to lift or carry 10 pounds or more; that you are unable to stand or walk for 2 hours or more; that you are unable to sit for 6 hours or more; and that you have to lie down for 20 minutes or more every hour or two, in order to rest your back.

That's the kind of "nexus" between the medical findings and the functional limitations that you need in your medical records to get LTD benefits.

Your Doctor's Documentation Can't Be Conclusory

Needless to say, your doctor cannot be "conclusory" when documenting your disabling medical condition in your chart. It's not enough for your doctor to say you are "disabled from any gainful employment." The doctor must describe with specificity what physical functions you cannot do and explain in the medical records why you cannot do them, including the essential functions of your job.

How We Can Help

Our medical experts will review your case and get to know the variations of your condition. This translates into helping the legal experts know how to argue your case and fight for the benefits you deserve.