- Last Updated: 20 November 2015 20 November 2015
Private long-term disability insurance process
Ms. Comerford then explained the process that occurs when a patient files for Long-term Disability (LTD) by virtue of his or her employment. This is a much more difficult standard if the plan under which these claims are paid lets the fiduciaries (the companies) who make the decision on a claim do so “in their discretion.”
She stated that this language “in their discretion” is almost always in a company’s contract and what it means is that the decision of disability is up to the insurance companies. And, in many cases they will turn you down.
If the case goes to court, and many do, the insurance company’s lawyer can present pictures of the disabled patient out mowing the lawn, carrying groceries etc. because the insurance investigators are out there, and are known, at times, to investigate people using a variety of methods, including long lens cameras, talking to neighbors, etc.
Ms. Comerford knows that on a good day, patients have a tendency to do all that is possible because they do not know when another good day will come around. Insurance companies fighting disability use every trick they legally can. Having a disability lawyer who does not understand how this illness works and how to fight the insurance companies is very challenging for the patient. Having a lawyer who can explain the illness and the unsustainability of it goes a long way.
Ms. Comerford also said conflict of interest still matters to the courts. In some cases where an insurance company under ERISA both pays the proceeds (i.e. benefits) and determines eligibility for benefits there can be an inherent conflict of interest. Then the patient’s lawyer must show the court that the process in which the case was evaluated was very, very faulty to the point of abuse of “their [the insurance company’s] discretion.”
One way that this can be shown is to present enough medical documentation along with strong evidence that those medical findings limit the patient’s ability to function.
Then, the court also evaluates whether the insurance company based its decision on their nurse’s paper review; the opinion of their (the insurance company’s) doctor who has no CFS background; as opposed to the recommendations and opinions by a physician who knows this illness. The courts will consider this issue because CFS and FM require a tremendous amount of specialization.
Another situation the court will look at is if the insurance company is not paying any attention to a favorable SSA ruling for the patient. Most insurance companies require the patient to file for SSDI because their financial exposure is less if they are paying the claim. Once the person gets awarded SSDI, the insurance company may claim any “overpayment” they have made that overlaps with retroactive Social Security benefits.
If the patient ever has to go to Court to appeal an LTD rejection, his or her lawyer could argue that the federal government—the Social Security Administration—has determined the individual is disabled. Courts will also look at whether the insurance company took into account the unpredictability of this illness, which Ms. Comerford stated as one of the worst and most disabling symptoms of this disease, as well as the unsustainability of activity and post-exertional malaise.
The unpredictability and unsustainability are hallmarks of this illness, and as she said “What employer wants an employee that cannot predict that they can show up for work from one day to the next?” If the insurance company ignores the unsustainability and has a video showing a patient lifting a twenty-pound bag, chances are tomorrow the patient will be in bed all day. It is that unsustainability that is important for the court to understand.