Top Mistakes People Make Preparing an Administrative Appeal
- Trying to Do It Yourself. As noted above, unless you are an expert in medicine and disability law, you are likely to make mistakes that permanently damage your claim. Our firm has had to decline a great many cases that could have been won if we had been contacted to prepare the administrative appeal. If we are contacted after the appeals process has ended, we are stuck with whatever evidence the insurance company has in its files. Most of the time, it isn’t enough to win under ERISA’s difficult burden of proof.
- Failing to obtain your claim file from the insurer. You have the right under ERISA to a complete copy of the claim file. It contains valuable information that will help guide how to prepare the appeal – if you know what to look for. There may be information in it that demonstrates a sloppy or biased claim investigation and decision. There will almost certainly be medical and/or vocational consultant reports that underpin the denial. Those reports require a direct and thorough response. Some people who try to handle an appeal without a lawyer fail to ever obtain the claim file before responding. This is a big mistake.
- Failing to obtain the “objective evidence” necessary to win an ERISA claim. In ERISA disability litigation “objective evidence” is extremely important. Objective evidence is anything that can’t be faked by the claimant, or which doesn’t rely on your word. Any abnormal test result can help your ERISA case: think blood tests, MRI’s, CT scans, SPECT scans, abnormal clinical examination findings, vestibular testing, cardiac testing, exercise tolerance testing, neuropsychological testing, and the like. In ERISA cases it is especially important to provide objective, scientific verification and measurement for everything you can in order to prove your case. Sometimes testing is needed to prove the legal case even if the testing isn’t really important for treatment purposes.
- Failing to “connect all the dots” in your proof. In ERISA disability cases it is never enough for your physicians just to say, “this patient is totally and permanently disabled.” We have seen comments in the policies and procedures manuals for multiple insurers stating that general statements from a treating physician that the claimant is “disabled” are entitled to very little weight, while objective test measurements will be given far greater consideration. The doctor will have to explain all the objective data that supports your diagnosis and verifies and measures your symptoms; he or she will have to explain exactly how your disabling symptoms translate into specific work restrictions (which can be physical, emotional, cognitive, or all three). Your doctor may have to explain why a notation of “improvement” or “stability” in your record does not mean you are able to go back to work. He or she will have to respond directly to any inaccuracies in the insurance company doctor’s report. Unless you are a full-time specialist in disability law and medicine, it is next to impossible to get this part of the appeal right. You may have the best doctor in the world to treat your condition, but medical schools don’t teach doctors how to deal with insurance company runaround. Even well-meaning, supportive doctors need guidance from legal experts to get this right.
- Failing to hire the right experts. If your claim turns on a vocational question about how your occupation is defined and your duties were performed, you will probably need to hire a vocational expert to explain why the insurance company’s analysis is wrong. If there is a question about your benefits calculations, you will probably need an accounting or payroll expert. If you have a brain injury you will probably need a different kind of expert to explain this very complex field of medicine. These are but a few examples. Again, the administrative appeal is your last chance to assemble the evidence to prove your claim. If your claim turns on a question that requires expert clarification, now is the time to obtain that evidence. Some cases require multiple experts in multiple fields. If you don’t hire them now, that hole in your proof can never be fixed.
- Failing to see how the insurer’s decision conflicts with the language of your plan. An ERISA attorney loves to look for subtle ambiguities in the contract language. There is a principle of law that says that if an insurance term can reasonably be interpreted more than one way, the courts will impose the reading that offers the greatest coverage. After all, the insurance company drafts these incredibly confusing documents, and they are in control of the terms. If they don’t write the policies clearly, the consequences should be on the insurer, not on you. The likelihood of a non-expert finding subtle ambiguities in an insurance contract are pretty slim. Each policy is different. Reading it yourself you might not understand the nuances that have been interpreted by judges over the years. We do.