Surprise! The Judge Might Not Be Deciding Whether You are Disabled or Not

If your long-term disability case goes to trial, the judge may be looking for more than evidence of your disability.There are two different standards by which your case may be judged. The “de novo” standard of review is what you want. “De novo” means “starting anew,” so in the courtroom this means the judges are looking at the original question the insurance company was supposed to answer: does your disability qualify you for benefits under your insurance plan.

While the de novo standard of review asks more than just “are you disabled” by making you prove that YES you are disabled AND YES you qualify for benefits under your specific disability insurance plan, it is much more common sense than the other standard of review.

The “abuse of discretion” standard of review is what will make your case stupidly difficult. The abuse of discretion standard means that the court is NOT ruling on whether you are disabled and qualify for benefits. Rather, they are simply examining whether the insurance company’s process for arriving at their denial of benefits was reasonable. This means that the court can agree with you that, yes, you are disabled and yes, you are covered under this policy BUT because the insurance company is able to justify their decision, the insurance company wins.

This absolutely unreasonable standard of review is triggered by a clause that nearly every insurance company attempts to slip into their employer-offered disability policies: “We reserve the discretion to determine benefits.” This—or something very similarly worded—is called a “discretionary clause.” This is #1 of our Seven Deadly Clauses in Robbery Without a Gun because it is so widely used, affects every person covered by the policy, and has such harmful effects when invoked.

Ben Glass
Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney
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