Long Term Disability Lawyer – Dr. David Anaise, MD

LONG TERM DISABILITY (LTD) ,ERISA TUCSON ARIZONA

In addition to being a lawyer I am a surgeon with almost thirty years of medical experience. I served as Clinical Associate Professor in Surgery, Assistant Editor, Transplantation Proceedings and President of the New York Transplantation Society.  As a associate professor of surgery I have authored 3 book chapters three patents and 106 research papers published in peer reviewed medical journals. Because of my medical and research background, I believe I am in the best position to study and present your disability case in the best light. I obtain all the medical records in your case and perform an independent medical research. I analyze your case. I often meet with your doctors to have the best information available. I then present an analysis of your case to the judge arguing not only the legal merits of your case but also present your medical file in its best light.  Over the last 15 year I successfully represented  clients who were denied Long Term Disabiliy ( LTD ) benefits by Cigna, Metropolitan Life Insurance (MetLife) ,The Hartford, The Life Insurance Company of North America (LINA) Unum, Aetna Lincoln National Life Insurance Company Sedgwick CMS and the Arizona State Retirement System (ASRS)

WHY DO I NEED A LAWYER WHO SPECIALIZES IN LONG TERM DISABILITY (LTD) ERISA LAW

Long Term Disability ( LTD) Disability insurance policies are very specific as to the provisions that need to be satisfied in order to obligate the insurer to pay you benefits. Group policies are designed to limit coverage and the amount of benefits payable. This is done in many ways, including limited definitions of disability, offsets against benefits, as well as significant limitations and exclusions in the policy.  Generally, group policies are subject to the ERISA regulations. The Employee Retirement Income Security Act of 1974 (ERISA) is the federal law that regulates the establishment, operation, and funding of most non-governmental employee benefit plans, including long-term disability plans. ERISA was adopted to protect the benefits of plan participants and beneficiaries. Unfortunately, due to unartful drafting by Congress, the courts have often defeated the purpose of the act and have provided protections to insurance companies at the expense of participants and beneficiaries. ERISA is now used by insurance companies as a sword in an attempt to deprive participants and beneficiaries of meaningful judicial review.

WHAT IF I APPEAL THE DENIAL OF THE LONG TERM DISABILITY DECISION ON MY OWN

The Long Term Disability  ( LTD) plan must provide you with 180 days to appeal their denial.  If you fail to successfully appeal the decision you have the right to take your case to the Federal Court. Under ERISA, the Court will not allow you to introduce new evidence. The Court will not hear testimonies.  You have the burden to prove that the determination by the LTD plan was the result of “abuse of discretion” and it is “arbitrary and capricious.” This is a difficult standard to meet.  It is crucial that an attorney experienced in Long Term Disability  ( LTD), ERISA law will file the administrative appeal. This way even if the  LTD plan denies your claim you have certainty that all the evidence needed to support your claim was provided and thus the Court can fully asses your arguments.  Remember that your long-term disability claim case manager is not your friend, your advocate, or your confidant. Don’t be fooled. No matter how empathetic, friendly, or helpful your case manager appears to be, your case manager is your adversary. What you say, can and will be used against you, not only in your claim, but also in any legal proceeding in the future.

YOUR LONG TERM DISABILITY DENIAL ,WHAT WE DO :

1. Demand Documents from the Insurance Company. We write the insurer demanding a copy of: the plan; the policy; the SPD; the claim file; all documents relied on by the insurer in denying the claim; any internal guidelines used by the insurer; the reports of all medical and vocational reviewers; audio or videotapes of the claimant; and notes of any telephone conversations.

READ  how we appeal your Long Term Disability  ( LTD) case

 MY DOCTOR SAID I AM DISABLED 

The “treating physician rule” was originally borrowed from Social Security law, as used in Social Security disability cases. The rule is based on the premise that the “treating physician” is in a better and more informed position to render opinions and thus the Court must give these opinions controlling weight. Unfortunately, the US Supreme Court on May 27, 2003, in Black & Decker Disability Plan v. Nord, held that “ERISA does not require plan administrators to accord special deference to the opinions of treating physicians,” thereby effectively ending the use of the treating physician rule in ERISA-governed claims. ( See also Social Security and Long Term Disability  ( LTD) ERISA)

 I  WAS DENIED LTD BUT  DETERMINED DISABLED BY THE SOCIAL SECURITY ADMINISTRATION

Prior to the Supreme Court’s decision Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003), the Ninth Circuit applied the treating physician rule in ERISA disability cases. See Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130 (9th Cir.2001), vacated, 539 U.S. 901, 123 S.Ct. 2267, 156 L.Ed.2d 109 (2003). Under this rule, the opinions of a claimant’s treating physician are given special deference and may be disregarded only for clear and convincing reasons based on substantial evidence in the record. (SeeRegula, 266 F.3d at 1140). In Nord, the Supreme Court rejected this rule, holding that ERISA and the Secretary of Labor’s regulations implementing the statute do not command plan administrators to credit the opinions of treating physicians over other evidence relevant to the claimant’s medical condition. Nord 538 U.S. at 825, Following the rejection of the treating physician rule in ERISA cases,  plan administrators almost uniformly ignore the favorable decision by the SSA when denying applications for disability benefits under ERISA. social security and long term disability( read full article )

I SUFFER FROM FIBROMYALGIA OR CHRONIC FATIGUE SYNDROME BUT DENIED LTD BENEFITS

Fibromyalgia syndrome (FMS) is a common and distressful condition with multiple facets. FMS patients can be subclassified into five groups based on their clinical presentations: • Predominant pain and fatigue; • Predominant anxiety, stress, and depression; • Predominant multiple sites of pain complaints and tender points (TP); • Predominant numbness and swollen feeling; • Associated features, that is, irritable bowel syndrome and headaches Fatigue is the hallmark of the chronic fatigue syndrome (CFS); fatigue must be new, persistent, or relapsing and associated with a 50% reduction in a patient’s premorbid activity for at least 6 months. In the mid-1980s, reports erroneously linked CFS to Epstein-Barr virus (EBV), and CFS continues to be controversial. Fibromyalgia is a similar disorder of widespread musculoskeletal pain and fatigue with other symptoms, such as poor sleep. CFS and fibromyalgia are overlapping disorders; about 75% of patients with CFS also meet the criteria for fibromyalgia, and vice versa. The onset of CFS is often acute after an infectious illness, typically viral, whereas the onset is often gradual with fibromyalgia. ( READ MORE) FIBROMYALGIA  and Long Term Disability  ( LTD)

 Typical reasons for denial of Long Term Disability  ( LTD)

The clients I most often see are clients who were approved for benefits by the insurance company but shortly thereafter the plan terminates their benefits.  The most common arguments raised by the plan are: •         * The Claimant’s medical condition has improved •         * The Claimant is not receiving adequate medical care •         * Surveillance by a private investigator found that Claimant is not disabled The Claimant’s Medical Condition Has improved READ MORE  Typical reasons for denial of Long Term Disability  ( LTD)

 

Representation, Arizona Retirement System Long Term Disability Income Plan

There are three primary reasons why your claim may be denied:

1. You misunderstand the policy language.

2. You are unable to overcome the “hired gun” experts hired by the insurance company to defeat your claim.

 

see Representation, Arizona Retirement System Long Term Disability Income Plan

Do You Need Representation for Long Term Disability Benefits?

Do you need representation for LTD benefits 

While the process described above is relatively straight forward , many claims are denied.

There are three primary reasons why your claim may be denied:

1. You misunderstand the policy language.

2. You are unable to overcome the “hired gun” experts hired by the insurance company to defeat your claim.

3. You are denied by the internal appeal process and need to file a law suit under ERISA.

The policy requires that you appeal the denial in 60 days.  Many of my clients believed that the requirement is satisfied by a letter stating that they are dissatisfied with the decision.  This kind of “appeal” rarely if ever leads to reversal of the decision.   Hiring a lawyer after the second denial is a waste of time as the Court will not accept any material not previously provided to your insurance claim representative and your Court filing is doomed to fail.

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Social Security and Long Term Disability under ERISA

Prior to the Supreme Court’s decision Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003), the Ninth Circuit applied the treating physician rule in ERISA disability cases. SeeRegula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130 (9th Cir.2001), vacated, 539 U.S. 901, 123 S.Ct. 2267, 156 L.Ed.2d 109 (2003). Under this rule, the opinions of a claimant’s treating physician are given special deference and may be disregarded only for clear and convincing reasons based on substantial evidence in the record. In Nord, the Supreme Court rejected this rule, holding that ERISA and the Secretary of Labor’s regulations implementing the statute do not command plan administrators to credit the opinions of treating physicians over other evidence relevant to the claimant’s medical condition.Nord 538 U.S. at 825, Following the rejection of the treating physician rule in ERISA cases,  planadministrators almost uniformly ignore the favorable decision by the SSA when denying applications for disability benefits under ERISA.

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Strategies Used Insurance Companies to Deny Benefits

The clients I most often see are clients who were approved for benefits by the insurance company but shortly thereafter the plan terminates their benefits.  The most common arguments raised by the plan are:

•         * The Claimant’s medical condition has improved

•         * The Claimant is not receiving adequate medical care

•         * Surveillance by a private investigator found that Claimant is not disabled

The Claimant’s Medical Condition Has improved

The initial approval by the plan has legal significance.

 

In order to deny benefits at a later time the plan has to show a major change in circumstances.  In McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586 (8th Cir., 2002) The Court of appeals held:

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How We Appeal Your Case – Long Term Disability

1. Demanding documents from the Insurance Company. We write the insurer demanding a copy of: the plan; the policy; the SPD; the claim file; all documents relied on by the insurer in denying the claim; any internal guidelines used by the insurer; the reports of all medical and vocational reviewers; audio or videotapes of the claimant; and notes of any telephone conversations.

2. Demanding Specific Reasons for Denial. By law the insurer is obligated to provide specific reasons for their denial.  We write the insurer demanding that they provide us with a more specific description of the reasons for denial. Often the initial denial letter only states that there was insufficient objective evidence in support of your claim.

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