We have talked about the model employee benefits attorney, the model client, and the model long-term disability case from the claim process standpoint. This is part two of our discussion, where we address appeals, or reviews by the insurance company (or plan administrator) on an adverse decision previously made. Watch this video for more on the model long-term disability appeal.

From simply not agreeing that your client cannot work due to their medical conditions to claiming there is not enough objective evidence to support their claim they cannot work, insurance companies deny or terminate claims for many reasons. Insurance companies will deny any claim they believe they can get away with denying and under ERISA. So, it is important that you pull out your client's policy and look at the rules regarding appeals or reviews of an adverse decision.

Step #1: Know the Deadlines.

• What is the deadline? If the decision was denied on January 1st (the date of the letter), the first question to ask is, what date did the client actually receive the letter? That needs to be documented. For example, if your client receives their claim decision and denial on January 1st, then the policy may say that they are required to be provided at least 180 days to gather your evidence and provide it to the insurance company to appeal the decision. (Under COVID rules it is longer!) Those extra days may matter in the preparation of your appeal, so you need to note the day you received the letter. The date that you received the letter it is the date that you run the 180-day minimum time frame.
• When was the denial letter actually mailed? It is important to keep the letter AND envelope to determine when it was postmarked. Insurance companies will often have these letters in template format, and many insurance adjusters may work from home, which may cause a delay in when the letter is actually transferred to a mail facility when the letter is actually postmarked. That all will take a good bit of time and it does not count against your client's time to appeal.
• Why do I have six months (180 days) to appeal? Perhaps you think six months is too much time. You may say, “I can draft a letter in a day in and send it.” If you do that, this is a sure way to lose your client's appeal as you need solid evidence backing up their claim. First, you need medical records, and it takes time for you to order your medical records. It takes time to get the claim record and go through the claim record. It takes time to get opinions from physicians. It takes time to get opinions from perhaps a vocational consultant. All of that needs to be done to present a strong appeal.

Step #2: Obtain the Claim Record.

After you know what your deadlines are in the model long-term disability appeal, your first order of business is to obtain the claim record. Obtaining the claim record allows you to do several things:

• Obtain the claim record, so you know detailed reasons why your client's claim has been denied.
• Obtain the claim record, so you can document and evaluate what is in the claim record. Sometimes information is withheld from the claim record, sometimes intentionally, sometimes unintentionally. Evaluate what is in the claim record. Ask questions like:
  • Do they have all of my client's information in the record including everything I/they have submitted
  • Did they order medical records from my physicians for the relevant time period?

Step #3: Obtain Evidence and Information to Support Your Claim.

That involves some strategy, and usually, it is at the appeal phase that we strongly recommend that you consult with or refer your client's case to an experienced ERISA attorney. In some instances, it is helpful to have an ERISA attorney during the initial claim process to help marshal that along.

With an appeal, it can be much more difficult, as the ERISA attorney must do much more in order to fix many of the problems that may have popped up during the appeal process. Some clients wait until litigation to hire an attorney, but by then, it may be too late to fix any problems. The appeal time frame is the latest time to consult with an ERISA attorney to assist your client.

You are allowed 180 days to submit your client's appeal. Once the insurance company has received your appeal, they have 45 days to make a decision. That means that there will likely be 225 days between the time your client receives the denial to when an appeal decision is made, but there may be extensions of that time extending it to even 270 days (if the insurance company requests a 45-day extension). That is a good bit of time to go without a disability benefit, but that is the process that they are allowed to utilize in order to review your client's claim. There can also be tolling (like we discussed in the initial claim process) due to delayed requests and responses.

Step #4: After Appeal is Denied, It is Time to Litigate (or Perhaps Appeal Again?).

Once 225 (or perhaps, 270 days) has passed, the insurance company may have made another adverse decision, or they may have not made a decision at all. At this point, it is time to litigate whether it is on the merits of the decision or because the claim has been deemed exhausted. The court does not have to give deference to an untimely decision.

At this point, it is time to check your client's policy again. Some, not all, policies or plan documents will require two appeals. That means that another 270 days can pass before you can litigate (for a total of 540 days!).

This is why consulting with or referring your client's case to an experienced ERISA attorney as early in the process as possible is so important. It is important that an attorney submit evidence and information to the insurance company as if they were already in a trial. Let us know if we can help.