Common Mistakes to Avoid
Often people will stoically continue to work in their occupation, despite losing their ability to perform their most vital occupational duties. A serious risk of this is being fired or laid off due to non-performance, and losing your status as an “active employee” covered for a disability claim. You may have the right to file a claim after being fired or laid off, because perhaps you can prove that your illness resulted in your poor performance and eventual firing. The decision to leave work due to a disability is a difficult one. It is natural to want to stay at your job for as long as possible, especially if your career provides security and personal fulfillment. But if you’re dealing with a disabling condition, it’s almost always better to file your long term disability claim before you get fired or laid off.
With our help we would investigate your medical records to establish that your condition pre-existing your release from work. Did you advise your employer or note in your performance reviews that you had a medical problem? There are many items to collect to support your claim, including a statement from a fellow employee who knew of your medical impairment and how it impacted your work. Obtain your performance evaluations and any adjustments to your work that you adapted in order to continue.2. Signing a Severance Agreement
Sometimes the employer will require you to sign a severance agreement at that time, in exchange for a couple of weeks of pay. The severance agreement or release may be more limiting that you know. Severance agreements contain language releasing any claims you may have under your ERISA long term disability plan, as well as your other employee benefit plans. This could be fatal. The severance agreement may completely preclude your ability to file a successful long term disability claim.
Carefully review the severance agreement and consult with an attorney before signing anything. A qualified ERISA long term disability attorney will be able to tell you how the agreement could impact your coverage. Your attorney also may be able to negotiate changes to your severance agreement before you sign it so that your long term disability insurance is protected.
Once you sign a severance agreement releasing your long term disability claim, there may be nothing you can do to reverse it. This cannot be stressed enough. Do not sign the agreement without consulting with an ERISA long term disability attorney first.3. Failing to Collect Evidence for Conditions That are Hard to Prove
Some conditions are difficult to prove since objective evidence may not exist. For example, pain is experienced differently by each of us; migraines and headaches cannot be seen. A psychologist or psychiatrist can, through a careful clinical evaluation, perform a “mental status examination” to evaluate your ability to function and what elements of your daily function are impaired by your Mental health conditions.
Do not assume that your insurer will gather supportive medical evidence for you. Most ERISA long term disability policies put the burden on you, as the claimant, to gather sufficient evidence and submit proof of your claim. Your insurer is very unlikely to do it for you.4. Failing to Review the Records of Your Doctor Who You Believe is Supporting Your Claim
In this age of electronic medical records, often the doctor’s records will be like a laundry machine, “Wash, rinse, repeat.” Instead of carefully picking through the “clothes” to select the best wash cycle, the doctor simply copies the records of prior visits, repeating our client’s function, or limitations, although they have changed. Insurance companies will seize on all evidence in medical records that supports their claim and disregard the rest. For instance, in a recent case, although our client had given up tennis and commuting to NYC by public transportation long ago, the doctor continued to note in his chart that our client continued to play tennis and commute to NY. This did not sit well with the insurer, who noted that if our client could perform these physical tasks, he was not disabled and more functional than he claimed. Therefore, obtain copies of your doctor’s records and carefully review them, asking the doctor to correct any mistakes.5. Social Media
Information about us is more accessible than ever before. The insurance companies mine for data about clients, to disprove disability. If you are applying for long term disability, expect the insurance company will try to learn more about you through your social media posts. Pictures create a false impression of function and physical wellbeing. The disability insurance company will optimize LinkedIn, Indeed or facebook postings to undercut your claim. Make any social media private; its best not to post at all- and do not discuss your medical condition on the internet. Check your privacy setting; limit the ability to tag photos, do not accept “friend” invitations from persons you do not know.6. Insurance Forms
When on claim, the insurer will send an “activities” form to the claimant to fill out especially when the claim status is being considered for “any gainful occupation.” The more recent forms ask very detailed questions about computer usage, software experience, such as excel, word, spreadsheets etc. The insurer is not simply curious, but seeking some key data to support a claim that you can use the computer from home and work remotely, therefore denying the claim. This is also true when it comes to “siting, standing, walking, driving,” depending on the answers, the insurer will link that to functionality. We at Rafel Law carefully review these forms with our clients, to ensure truthful information is conveyed yet limited in time and scope.