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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I Made a Huge Mistake in My Long-Term Disability Claim
Q: I experience severe cognitive problems/brain fog in addition to physical symptoms, and at times the simplest tasks are very difficult for me. Anyway, it took me weeks to feel well enough to fill out a simple supplemental claim form for the LTD Company. Today I filled out the form and also prepared a fax cover sheet to my doctor so I could send him a copy of what I sent to the LTD Company for his files.
I managed to send the fax addressed to my doctor to the LTD by mistake. Since this is a new doctor, I included a message to the doctor noting that I have an attorney who specializes in LTD review most information that is submitted and advised him not to submit anything if requested until the attorney gets a chance to review it. I also noted that I have not had any problems with my benefits but want to continue having forms reviewed as a safeguard.
Up until now, the LTD Company had no idea that an attorney was involved. Do you think anything will come of this? Will this be a red flag to the insurance company to investigate me further or more intensely? I am genuinely not capable of working or doing much else and the stress of always worrying about my benefits certainly does not help matters.
A: This is a mistake that will probably bring your claim under closer scrutiny with insurance companies. We are often asked to represent claimants right from the beginning, i.e., before they file for benefits. When the insurance company finds out about our involvement, it always acts like this is a complete surprise and is "hurting their feelings."
I suspect that the insurance company also won't be happy to learn that an attorney is vetting the doctor's reports. You see, claimant's attorneys are always very suspicious of the reports generated by the insurance company doctor.
This was a huge error. Hopefully, it will not be fatal to your claim.
Do Statutes of Limitation Apply to Long Term Disability?
A: There are several time issues to be aware of in-group long-term disability claims governed by ERISA.
- You must give timely notice of your claim and then follow up with timely proof of your claim.
- If your claim is denied you have 180 days to "appeal" that denial. That "appeal" goes right back to the insurance company that decided you weren't entitled to benefits in the first place!
- If you do have to file suit, you CAN file your case in STATE court, but it will be removed (transferred) to Federal Court in all likelihood. There is NO ERISA statute of limitations. Courts follow the whatever state statute of limitations applies to written contracts.
However, be warned that buried in your employer's insurance plan may be a hidden statute of limitations that is much shorter (as short as 180 days I have seen!). You must read your plan from front to back, and use a magnifying glass if necessary.
My Insurance Underpaid My Disability Benefits?
First, UNUM probably owes you interest on the benefits they shorted you for years.
Second, it would be well-worth your time to have this matter reviewed by an experienced disability insurance attorney. For a couple hundred dollars, that attorney could probably run the numbers for you.
It's likely that UNUM is right on the overpayment--believe me when I tell you they wouldn't have let that letter out the door without three supervisors looking at it! It is doubtful that they will come back in the future and try to get this money back
But check out the interest... they've had YOUR money for years!
How Do I Get My Long-Term Disability Claim Records?
If your policy is a group policy, then it is probably regulated by ERISA. If so, you are entitled to a complete copy of the claim file by writing to the company and asking for all relevant documents that make up your file. They have 30 days to give it to you. When you get it, make sure that it contains at least the following:
- your plan or policy
- any summary plan description
- any records you sent them
- any records your doctor sent them
- any records they received from authorizations you signed
- any internal notes they made while processing your claim
- reports from any doctors that they had look at your case.
Remember, if you are going to appeal your case, you generally have 180 days from the date you received your denial letter to appeal.
What Are Some Bad Clauses In A Long-Term Disability Policy?
Long-term disability policies are unlike any other type of insurance. As an employee, you often don't have the choice between several companies with different types of coverage. Employees are typically stuck with whichever policy their Human Resources Department has chosen for the company. And while many companies pick responsible, well-written policies, there are just as many irresponsible businesses who choose the cheapest policy they can find.
Also, unlike your car insurance, homeowner's insurance, or life insurance policy, which are subject to state regulation, there is absolutely no governmental oversight for employer-sponsored long-term disability policies. That's right, while your state has a whole department dedicated to reviewing and approving every other type of insurance policy imaginable - flood, fire, casualty, car, boat, life - there is not a single person whose job is to review the language in your employer's long-term disability policy.
Even worse, recent decisions from the Supreme Court of the United States have practically granted immunity to these companies. In fact, according to the 8th Circuit Court of Appeals, the burden is now on a plaintiff to show that his plan administrator "acted dishonestly, acted from an improper motive, or failed to use judgment in reaching a decision."
So Who's Looking Out For You?
The state hasn't reviewed the policy that your company purchased. You can't negotiate any of the terms of your policy on your own. Certain irresponsible HR departments simply select the cheapest policy they can find without reading the terms or consulting an experienced attorney about the consequences of those terms. And all the plan administrator has to do is keep from acting dishonestly.
Get your disability insurance policy out right now. Sit down and actually read through it. If you find any of the following language in the policy, the policy isn't protecting you in the ways that you and the HR department think it is. Run and scream to your Human Resources Administrator or find your own private policy if you see:
- Any language granting the insurance company "discretion" to determine your benefits;
- A definition of disability that requires that you not be able to perform "each and every" important function of your job before being paid benefits;
- An "own occupation" period of less than two years;
- Income protection of less than 60% of your prior year's earnings;
- Language terminating all benefits if you are "able to work part time, but don't;"
- Blatant discrimination against the mentally ill;
- Limitations on disabilities caused by so-called "self-reporting symptoms;"
- Benefits that are contingent upon securing Social Security disability benefits; or
- A limitation on benefits for fibromyalgia or chronic fatigue syndrome.
If these terms are in your policy it means one of two things. First, whoever made the decision to purchase your company's long term disability policy did not actually read the terms. Second, if they did read the terms, it means they didn't understand them. Why? Because your policy only bought you the illusion of protection.
What Does the Clause 'We Have Discretion to Determine Benefits' Mean?
Imagine this: Your initial claim for disability benefits from a major disability insurance company is denied. You read the policy and realize that you are entitled to an appeal... but that the appeal goes back to the same insurance company that denied your claim.
Later, when you file a lawsuit against that disability insurance company to enforce the rights that you bought with your monthly premiums, you learn that under federal law, the insurance company's decision is presumed to be correct. In fact, not only do you have to prove that the insurance company was incorrect, but that it's decision was completely wrong and unreasonable.
During your lawsuit, you will have absolutely no opportunity to take the deposition of the insurance company representative who decided in your case or to ask the company how they came to that decision. You also won't be able to take the depositions of or even meet with, the doctors who may have been involved in deciding whether you can work. (Never mind how ridiculous it is that a doctor who you have never meet or be examined in qualified to determine whether you can work.)
When it comes time for your "trial," you will not be entitled to have a jury of your peers to hear your case. Instead, a federal judge will be appointed to decide your case.
The judge will not see any evidence or listen to the testimony of any witnesses. He will only review the insurance company's file and listen to the lawyers.
His job is not to determine whether or not the insurance company's ruling was correct. Instead, he only determines whether the insurance company's process was reasonable. Only if he determines that the decision to deny you benefits was both wrong and unreasonable can he decide that you have "won" the case.
And What Do You Get for "Winning?"
In a typical personal injury case, you would be entitled to medical bills, pain and suffering, interest on the judgment, and a few other collateral items.
In a long-term disability case, you "win" the benefits that you were entitled to originally. That's right. Lost your house? Too bad. Lost life insurance or health benefits because of the insurance company's decision? Oh well. Had your life sidetracked for years while dealing with the inconvenience and hassle of the insurance company's wrong and unreasonable decision? Tough. The only remedy the judge can grant you is to give you the benefits you were entitled to from day one.
If these rules sound ludicrous, you're right. But these are exactly the rules that employer-sponsored long-term disability plans are judged by. But you won't find these rules in any section of the United States Code or the laws of your state. They're the rules that the insurance company creates for themselves when they write "We have the discretion to determine benefits" into your policy.
This clause is called a "discretionary clause," and has been ratified by the Supreme Court of the United States when they decided that disability insurance plans sponsored by employers are allowed to "reserve discretion" to determine your benefits. The Supreme Court reasoned that it would be a good idea to keep these types of cases out of the courts and "leave it to the people who knew about these claims the best." Unfortunately, the result of this ruling is that in 100% of these cases, the "discretionary clause" makes an insurance company's decision almost irreversible.
The words "We have the discretion to determine benefits" are the six most dangerous words you can find in any insurance policy. The real injustice is that most employers do not understand what this clause means to their employees and never object when the insurance company calls to ask whether they can add this clause to the policy.
Why Doesn't My Treating Physician's Opinion Matter in My Disability Case?
We're taught from the very beginning to trust our doctors. The trust component of the physician-patient relationship is one of the most important aspects of choosing who you take medical advice from. After all, if you don't trust your doctor, how can you rely on his medical opinion?
So then why, when your doctor declares that you are "disabled" and can no longer work, is the insurance company allowed to ignore his opinion?
Because in 2003, the Supreme Court of the United States issued a ruling that long-term disability insurance companies do not have to give any deference to the opinions of the treating physician when evaluating a disability claim. When Kenneth Nord, a material planner with Black & Decker went to see his doctor about hip and back pain, he was told he might have degenerative disc disease. After confirming the disease with an MRI, Kenneth was advised by his doctor to stop working at his "sedentary" job.
Following the advice of his doctor, Nord stopped working and applied for disability benefits. He was quickly denied and then filed his appeal. His doctors and Black & Decker's HR Department filed all the documents to support his claim. MetLife, who was the insurance company administering the claim, sent Nord to get a second opinion - from one of their doctors. While MetLife's doctors agreed that Nord had a degenerative disc disease, they also thought that if he took pain medication, he would be capable of sedentary work as long as he did "some walking interruption in between" work.
Even though Nord had the support of his physicians and Black & Decker's HR department, his appeal was denied. So he went to the courts.
The Court of Appeals reviewed Nord's case and decided that the insurance company had to justify its rejection of the treating physicians' opinion. Because MetLife had not attempted to reject his opinion, the Court of Appeals declared that Nord should win.
But then the Supreme Court of the United States heard the case. After a full briefing and argument, the Court held that a disability plan did not have to give any special weight to the opinion of the treating physician. The Court reached this decision by reasoning that nothing in the ERISA law or the Department of Labor's regulations mandated that the insurance company give any special deference to the treating physician.
Even after the Supreme Court admitted that "The validity of a claim to benefits under an ERISA plan is likely to turn on an interpretation of the terms of the plan at issue," the Court held in favor of MetLife. In short, whether you are "disabled" hinges more on what the terms of your plan are than on what the problems with your body are.
After A Car Accident, I Was Taken to The Hospital. They Performed the X-Rays and Imaging. Later, I Found Out I Was Pregnant. Should I Sue for Malpractice?
Medical malpractice is one the of the most challenging type of case to prove in Virginia. State laws protect doctors and nurses, and your claim has to meet certain criteria to be considered for medical malpractice. To establish a medical malpractice case you need to show:
- a breach of the standard of care
- definite damages
- a firm link (proximate cause) between the two.
In other words, medical malpractice does not occur just because something bad could have happened due to negligence. You must prove something did happen due to negligence.
Unfortunately, in this scenario, you will have to wait until the doctors identify issues with your baby. Your doctor may find issues during your pregnancy using an ultrasound. Otherwise, you will need to wait until your child is born.
Additionally, you will have to prove that you were indeed pregnant at the time of treatment. If you were only a week or two along in your pregnancy, then the insurance company could argue that you weren't pregnant at the time. Since pregnancy tests aren't accurate until you are two or three weeks along, then it is possible you got a false negative. If the test came back negative, there was no breach of the standard of care, and you cannot prove medical malpractice.
Finally, if your baby has a birth defect, you will have to prove that this is directly related to the imaging test that was performed during your hospital visit. This will be difficult, considering all the potential causes of birth defects. There will need to be a clear link between the injury and the imaging tests performed.
What Happens If I Sign a Release After a Auto Accident?
If the insurance adjuster has asked you to sign a release, you need to understand that it will put an end to your case. Once you sign a release and cash your check, your case has officially come to a close.
You need to be careful about signing a release form too early. Sometimes, injuries don’t surface immediately and you may not be aware of the prognosis of your condition. You could be facing surgery and years of treatment. If you signed a release and settled your case, you cannot go back. It doesn’t matter that you weren’t aware of your injuries, the insurance company is not obligated to pay you any more money.
If you are not sure if you are ready to settle with the insurance company or if you have questions about your case, you should contact a Herndon personal injury attorney. A lawyer will be able to go over the details of your case and help you determine your legal options.
If I Suffered Injuries During Surgery, Do I Sue the Surgeon or the Hospital?
When you are the victim of a surgical error, there are many parties that may have been involved in your surgery. In some cases, you may only need to hold the surgeon responsible for your medical malpractice claim. However, if the injuries you sustained during a surgical error started back in another department of the hospital, you may have more than just the surgical team to blame.
A medical malpractice claim can be filed against an individual or a larger party such as the hospital where the surgery was performed. Before you go filing a claim, know who should be held liable for your surgical error by bringing your medical malpractice claim to the attention of a Fairfax medical malpractice attorney.
Your attorney can review the details of the surgical error and help you determine the parties to hold liable for your medical malpractice claim. In some cases, it may be best to seek resolution for your injuries by approaching the hospital directly, or you may be able to prove that the surgeon alone was responsible for your injuries.
Filing a medical malpractice claim can be made unusually difficult when you're at a loss as to who to hold liable. The insurance company isn't likely to offer you any help in this matter, as they want to resolve your claim as quickly and cheaply as possible. When you have a Fairfax medical malpractice attorney, they will be working to get you the highest settlement possible, because in most cases they are not paid unless they win you a substantial settlement.
Contacting a Fairfax Medical Malpractice Attorney
You don't have to deal with insurance companies and hospitals alone when you're looking to file a Virginia medical malpractice case. Fairfax medical malpractice attorney Ben Glass fights to help victims in the Virginia and D.C. areas settle their medical malpractice claims.