For claims filed after April 1, 2018, there have been some changes that will be helpful to claimants and hopefully make the claim process fairer:

Change #2: The Explanation

For ERISA long-term disability claims and pension disability claims, the insurance company or plan administrator must now explain why it disagrees with your treating doctor, Social Security Administration decision, or vocational expert.

This change to the new claim procedure regulation seems like a no-brainer. If my doctor says I am disabled, and a doctor only reviewing medical records says I am not, there must be a reason for the disagreement. That would only be fair, right? However, some courts have held that the insurance company had no discrete burden to explain why it was ignoring or disagreeing with a treating doctor's opinion.

This led to a fairly easy game to play, which insurers and plan administrators seized upon. Hire a physician to only review medical records and then provide an opinion that found full ability to work. No basis of disagreement is stated, but the cost of the doctor is far less than paying the claim. This is called a “peer review” by insurers. And if the doctor wants repeat business…he will say what is needed.

In fact, I may have several doctors, all agreeing that I am incapable of full-time employment, yet the insurer would still easily deny the claim with a peer review. I have had numerous claimants ask, “how can they deny my claim when my doctor and the Social Security Administration has found that I cannot work any job?” The simple answer is that they just ignored the evidence and used a peer review to buttress the decision.

Now, under the new claim procedure regulation, a claim cannot be denied so easily. Rather, a claim termination or refusal to pay benefits must include an explanation of the basis for disagreeing with the opinions and findings of a treating doctor or the determination of the Social Security Administration that the claimant was disabled.

Insurers and plan administrators might nonetheless say things like “the Social Security Administration uses a different standard” or “they don't have all the evidence we have.” However, when an independent doctor used by Social Security to examine the claimant finds restrictions and limitations, their doctor must provide an explanation as to why that is wrong. As Ricky Ricardo would say, “You got some ‘splainin' to do.”

ERISA lawyers are not born, they are made. We have fought for over a thousand people with ERISA claims. ERISA is what we do. Experience is critical for your claim. This experience, as well as knowing the past regulation, decades of law, and now the new regulation are keys to making your case as strong as possible.

If you have a long-term disability claim in Alabama or Mississippi, contact us during the claim process, so we can bring our expertise to your case.