Frequently Asked Questions about Personal Injury, Medical Malpractice, and Insurance Disputes
Below are some initial questions many clients have when they first contact BenGlassLaw. The questions below may address many initial concerns you may have. If you don't find the answers here, you can either use the Live Chat option on the left or send attorney Ben Glass a confidential message.
If you would like to talk with our team of experts today, you can contact us by phone at (703)584-7277.
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Do Additional Benefits, Such as Social Security Disability, Affect My Existing Long-term Disability Benefits?
Social Security can be beneficial to you as a disability claimant, but there are complications added benefits can have on existing benefits that you need to know.
Private long-term disability policies usually include a clause called an Offsetting Provision. This clause usually states that if you are currently receiving benefits (such as Social Security disability benefits), and you are awarded additional benefits, then your existing benefits will be reduced to your newly awarded benefits. Nearly all long-term disability policies require you to apply for Social Security Disability to create this offset.
In other words, “Other income gained offsets income paid through your disability insurer.”
Your total income will remain the same. However it will come from two or more sources. While this can be complicated, it is overall beneficial to you. Why? Say the insurance company decides to deny your claim. With diversified income sources, you would only lose the part of your income the denying insurer supplied.
This means that while you fight for those lost benefits in court, you still have an income to live off of. So on the surface, an Offsetting Provision may seem like the insurance company behaving selfishly, but it can help you in the long run.
What About "Retroactive Rewards"?
Beware careful with retroactive awards! Something to look out for is a lump sum check paid out for a past period as back benefits. Claimants are deservedly excited about this check. (We often get this for long-term disability claimants who work with BenGlassLaw to recover denied benefits.)
However, do not spend this money.
When the insurance company realizes you have been paid for back benefits by another source, they will realize they have overpaid you under the Offsetting Provision clause of your contract. They will bill you for their overpayment. The lump sum Social Security check will cover the bill for overpayment. It is imperative that you do not spend your lump sum back benefits check.
When Should You Hire a Lawyer After Your Disability Claim was Denied?
If the insurance company has denied your long-term disability claim, you have a limited timeline to appeal the decision. So, when should you hire an attorney?
Hire the attorney now.
If you are going to hire an attorney, hire them soon. The more time an attorney has to work with your case, the better prepared your claim will be. You know your story, but the attorney does not. He or she must work through your background and get all the facts, then write a legal appeal. That takes time, and every day, minute, and second counts.
How Much is Pain and Suffering Worth in Virginia?
When you’ve been injured in an automobile accident, you have a right to be compensated for many things:
- Property damage to your car
- Medical bills incurred
- Lost wages
- Pain and mental anguish
While the first three of this list are pretty straightforward, the last two (commonly referred to as “pain and suffering”) don't have an easily fixed value. That’s mainly because, unlike things like medical bills, they are not incurred in the form of a set number of dollars. Pain and suffering is inherently abstract and subjective. The pain and suffering for one person is different from just about anyone else.
The ultimate question you have is, “How do you put a value on MY pain and suffering?” The answer to that question really lies with the jury. The good news is that an experienced Virginia personal injury will be able to give you the best estimation. Juries everywhere are different, from state to state and even city to city.
When it comes down to it, we have to assume your case will go to a jury trial. There are a few factors worth considering when trying to determine the value of your pain and suffering in a Virginia claim.
Would a Virginia Jury Understand the Pain and Suffering Claim?
Let’s say, for instance, you were rear-ended at a high rate of speed. Your car suffered significant property damage, you were taken to the ER where you were diagnosed with injury (fractures, whiplash, tendon tears, for example), and you required either surgery, extensive rehabilitation, and/or both. And you have doctors willing to support your case - another factor in evaluating the value of your claim.
In cases like these, the argument for pain and suffering will be one that a jury can easily understand. There’s a mechanism of injury and medical treatment that are tangible and seemingly logical. This makes it more like that the valuation of pain and suffering will be greater.
However, in cases where there is low property damage, or you didn’t see doctors until days or weeks after the accident (always make sure you go and see a doctor soon after an accident), or you weren’t diagnosed with anything but received substantial treatment, it’s hard for a jury to understand. Unfortunately, many jurors will have a hard time believing what they don’t see.
Will You Be Able to Properly Describe the Pain and Suffering?
If your case were to go to trial, you get only the brief moments on the stand to articulate your pain and suffering. While it may seem that that’s a lot of time, in reality, it’s only a blip on the radar of your case. That means witnesses that can powerfully articulate their injuries with simplicity often receive better results from the jury. It also means that witnesses who are not as strong at communicating their pain and suffering properly will make a jury trial in Virginia difficult.
While it may seem unfair, human judgment is a central part of trials. Just like interviewing for a job, manners of speech, dress, and general presentation matter. Some people are better than others in these areas. When we evaluate a case, your “likability” and “credibility” are vital in the determination of the potential value of your pain and suffering.
At BenGlassLaw, we take the time to coach our clients to best communicate with a jury. It is important for our clients to be able to tell their story coherently so that they will receive the best chance to get a fair recovery for their pain and suffering.
What Are Your Other Damages?
If your accident is one in which you incurred significant medical bills for treatment, property damage to your vehicle, and/or lost wages, juries are more likely to award greater amounts of pain and suffering. If you think about logically, it makes sense. High dollar medical treatment such as surgery usually requires more substantial recovery which means more pain and suffering.
The “It” Factors?
Whenever we look at a case, we will look for “it” factors in the client's story. This means that we are looking for an unusually compelling part of your story. For example, let’s say your hand was broken in your accident, and now you have limited movement; plus, before the accident, you were a pianist. A jury could see how your injury clearly caused pain and suffering.
There’s no exclusive list of “it” factors. They are aspects about your injuries and your life that weave together for a jury to truly take a second look and think, “Wow, this person dealt with significant pain and suffering due to their accident and/or injury.”
The fact is that there’s no mathematical formula to answer this questions. Trial work is more an art than a science. But we can make two guarantees: 1) communication is key, and 2) we will put in the work to communicate your claim.
What Happens If My Employer Offers a Severance Package When I'm Out on Disability?
About once a month we get contacted by an employee who is out of disability but is being offered a severance package to leave the company. The question arises: what about my disability claim with the company's disability insurance company?
The answer is that your disability claim may well end with the signing of the agreement if you are not careful. It does not have to be that way.
In almost every situation your disability claim is being managed by a big insurance company. (Aetna, Unum, MetLife.) What we see happening is that your employer's corporate lawyers draft boilerplate severance agreements which purport to extinguish "all claims" you may have against the company.
Whether or not your employer INTENDS to extinguish your disability claim, you can bet that the disability insurance company's lawyers (different from your company's lawyers and, frankly, with no allegiance to your employer at all) will argue that your disability claim is over.
Here's the consumer tip:
If you are presented with a severance package, you may need to consult with TWO sets of lawyers (unfortunately.) First, an employment lawyer familiar with severance agreements. You may also need to consult with an experienced ERISA disability lawyer to get an opinion as to whether signing the agreement leaves you vulnerable to having your disability payments vanish.
Can I Win My Disability Claim Without a Definitive Diagnosis?
With some chronic debilitating conditions, a firm diagnosis may be impossible to achieve, particularly if you are seeing more than one health care provider for care. This should not prevent you from obtaining long-term disability benefits if you cannot work. Now, the truth is that if you don't have a firm diagnosis, you will likely need the services of an experienced long-term disability attorney to help you put together your appeal. These claims can often be tough to prove, but our firm has extensive experience handling these kinds of claims and has helped countless Virginia residents regain their benefits after a denial.
Example of Claim Being Denied Due to Lack of Definitive Diagnosis
In a recent case, Metropolitan Life Insurance company was presented with a claimant who's doctor said he suffered from an "undiagnosed neurological condition," with secondary diagnoses of optic neuritis and fibromyalgia.
A functional capacity test showed that the claimant had reduced endurance for work and a vocational expert reported that the claimant would not sustain work on a regular basis.
MetLife denied the claim.
The court found that MetLife abused its discretion in denying the claim because:
- MetLife placed too much emphasis on the absence of a unifying diagnosis
- MetLife ignored the results of the functional capacity exam
- MetLife did not seriously consider the vocational expert report
- MetLife failed to have a valid conversation with the treating doctors.
Consumer Tip: documenting your functional impairment may be more important than arriving at a firm, agreed upon, diagnosis.
How Will Signing a Consent Form Before My Surgery Affect a Potential Medical Malpractice Claim?
Generally, signing a consent form will not affect your medical malpractice claim in Virginia. In a lawsuit against a doctor, you must prove:
- What the standard of care required
- There was a deviation from the standard of care
- Damages occurred directly as a result of the deviation from the standard of care
- The damages are significant
In most cases, you will have signed a general surgical consent form. That form may or may not list specific "bad things" or complications that can occur as a result of the surgery.
The Supreme Court of Virginia has ruled in several cases that the fact you signed such a form is not relevant to the issue of whether the doctor is guilty of medical malpractice. Thus, such forms are generally not admissible in a lawsuit against a doctor in Virginia.
What Is the Most Likely Month That My Long-Term Disability Claim Will Be Terminated?
Most long-term disability policies provide that you will be paid benefits for 24 months if you meet the definition of disability and you cannot perform your "own occupation." After 24 months the definition of disability changes to "any occupation," meaning that you will only be paid if you cannot perform "any occupation."
(Note, these definitions do vary, policy to policy. Fax or email us if you live in Virginia and we will look at your policy for free and give you our analysis. Call us for the special fax and email contact information.)
We have handled over 1500 long-term disability cases and, an extensive analysis of our files reveals that if you are getting paid a disability benefit the most likely month that your benefits will be terminated is on the 21st month after payment started.
Why Will Your Benefits Be Terminated Early?
It is simply because the insurance company can save three months of payments. Multiply that by thousands of claimants, nationwide, and you can see how this affects insurance company profits.
The company knows that because of the change in definition at 24 months you will probably:
- Have a hard time finding a lawyer willing to take a chance on your case; and
- Just give up.
Don't give up. Read our free book on Virginia long-term disability claims to learn more about these cases and what you can do.
Can I Sue My Long-Term Disability Company for Bad Faith?
When your long-term disability benefits are denied or terminated, this can cause severe financial hardship for you. In addition to having your benefit check not arrive each month, you are going to have to find an experienced long-term disability attorney to appeal the denial or file suit.
That attorney will cost money.
You will almost certainly suffer emotional distress over the loss of expected benefits.
What about a "bad faith" case against the insurance company? Can you file one?
If the policy is governed by ERISA, (most employer-sponsored policies are), then there is no chance of recovering anything other than what the insurance company already owes you. You may also be able to recover attorney fees, but that is discretionary with the judge.
So the answer is "no," you cannot recover "bad faith" damages in Virginia for a denial of long-term disability benefits that are governed by ERISA.
If the policy is an individual policy or a group policy not governed by ERISA, you can sue for "bad faith" in Virginia.
The bad news is that if you win, the only damages recoverable are your attorney fees; plus, it is a very high bar that you must reach to recover bad faith damages.
The bottom line is that the disability insurance companies have a huge economic advantage over you in these cases. They know that on their worst day the most they usually face in court is having to pay you what they owed you in the first place.
(Fun fact: Complaining to Congress won't help much. They exempted themselves from ERISA.)
I Was on LTD For 2 Years, Now My Insurer Has Cut Me Off Because Of A Mental Illness Provision. What If My Disability Is Only Partially Based on A Mental Illness?
This is a great question for two reasons. First, because insurers use this trick frequently. They will often disregard all other disabling conditions and emphasize only your mental illness. Conveniently, this allows them to invoke their 2-year limitation, and stop paying you after two years.
If you feel you are disabled for different causes, only some of which are mental, then you may have been frivolously denied. Here is the general rule: when you have multiple causes for a disability, each must be considered in isolation. An example is the best way to explain. Say you have a diagnosis of depression and anxiety, as well as fibromyalgia. Now assume you have been on claim for two years for those disabilities. After two years, your insurer should, pursuant to any “mental illness” provision, stop considering your depression and anxiety. But that doesn’t mean they can ignore your fibromyalgia. It must still be reviewed to see if it, alone, is disabling. Conveniently, insurers often leave out that step, and simply terminate you because of the 2-year limitation.
Second, because there is always that question of which came first, the chicken or the egg?
Let me explain: people with chronic pain conditions and serious disabilities are often depressed, anxious, and have secondary mental illnesses. Your insurer will always try to say, as an example, “your depression makes your pain worse. Therefore you have a mental illness subject to the 2-year limitation.” What they are trying to do is to say a mental illness causes your other condition. Therefore they should all be lumped into the category of “mental illnesses,” conveniently subject to the contractual limitation. Again, you are entitled to separate review of separate disabilities. Furthermore, if your physical disability (or the like) is causing your mental illness, then logically it is the main disabling condition. It should be entitled to its own review.
As a final note, insurers are always looking to terminate your claim a mental illness claim. They always ask about your mental health and request psychological or therapy notes. They say it is to “help prove your disability,” but in reality, it to help give them a reason to terminate your benefits. If you have seen these types of requests, be warned: They are trying to find a reason to terminate your benefits early. Do not let them term your disability a “mental illness.”
I Was Awarded Social Security Disability. Does This Affect My Disability Insurance Benefits?
This is a question I hear, or a fact pattern I see, all the time. An award of social security disability (or SSD) benefits ALWAYS has an impact on your LTD claim. Allow me to explain the two ways in which it can affect your claim:
At a very basic level, winning SSD benefits is a sort of verification of your status as disabled. It is another independent organization concluding that you are, in fact, disabled. This doesn’t mean your LTD claim is safe, or will never be rejected/denied. Insurers love to overlook SSD awards. But it IS proof that another entity felt the evidence indicated disability. Obviously, SSD and your insurer use different standards in judging disability. However, by operation of law in many cases, your insurer cannot arbitrarily disregard the fact that you have been awarded SSD benefits. This is a good thing.
On a financial level, it has serious implications for your LTD claim. The VAST MAJORITY of disability insurance policies have “offsetting income” provisions (or the like). These provisions state that income from certain other sources offsets what your insurer pays you. SSD income is ALWAYS specified. What happens is best explained by example. Say AETNA/Hartford/UNUM/etc are paying you $2,000.00/month BEFORE you get SSD. All of a sudden, you get a letter from SSD saying you have been awarded benefits in the amount of $1,000.00/month going back 6 months. They pay you $6,000.00 (for the past 6 months), and they say you will get a check monthly for $1,000.00.
By the contract with your insurer, your insurer will now pay you $1,000.00/month ($2,000 - $1,000 = $1,000). This is good for many reasons. Most importantly, it diversifies your income and protects you in the event that one of your benefits is cut off. However, what about the fact that you were awarded “back-benefits” for the past 6 months?
You will owe that money back to your insurer. The award of back benefits means your insurer should have been paying you $1,000.00 less each month for the past 6 months. They will want that money back (when they realize it).
Which brings me to the advice: When you receive an award of SSD benefits, DON’T SPEND THAT CHECK!!! It is highly likely you will owe the majority of it, if not the entirety of it, back to your LTD insurer. Spend it, and the trouble starts.
Of course, in such a circumstance, speak with an attorney. Like I said, I see this issue all the time. I know how to negotiate a “repayment of overpayment” agreement that serves to help keep you on claim.