ERISA Disability Lawyer Tag

Her Firm’s Achievements & Results are Measured by the Satisfaction of Her Clients: A Conversation with Attorney Cassie Springer Ayeni

Q: When did you know you would pursue a career in the legal field?
CSA: As early as junior high or high school, I felt the need to advocate for others, to make a point to stand up for the kids who were being bullied or ostracized. I also realized around the same time that I truly enjoyed writing, reasoning, and debating. The law seemed a natural fit: I could use my skills to make a palpable difference in people’s lives. I had settled on a career in law by the time I was 16 and never looked back.

Q: Can you explain what types of cases an ERISA Attorney handles and why you chose this area of law?
CSA: I primarily help people with their employer-sponsored disability benefit claims. ERISA governs all private employer benefit plans, not just pension plans. Many employers provide disability benefit plans in addition to health and pension benefits. In fact, 65% of ERISA litigation is over denied disability benefit claims. The plans are often insured, and clients typically come to me after they stop working, apply for disability benefits to the insurance company, and are denied. I then step in to try to get their disability benefit income restored while they focus on their health.

Q: What is your approach or philosophy to winning or representing a case?
CSA: I lead with kindness. I want to understand truly what my clients have gone through medically, economically, and emotionally to get to this point in their lives, and how I can help. In representing a client, I am there for that person: I am responsive and listen with an open heart. I believe this the secret to winning a case as well – if I am doing my job right, I am painting a picture of the person and the case to help the court appreciate why my client is deserving of their disability benefits. I have the paintbrush and paint ready because I have spent months getting to know my clients and researching the law. And I also aim to be the best-prepared lawyer in the room with the most compelling brief … that helps too.

Q: If we interviewed all your past clients … what is “one” common word that comes up when they describe working with your law firm?  
CSA: Compassion

Q: What are some of the most popular topics you are asked to lecture on?

CSA: I speak frequently on ERISA topics, especially in my current role as the co-chair of the ABA’s Employee Benefits Committee. I love presenting to newer attorneys about the fundamentals of ERISA litigation, because I am eager to energize attorneys about how engaging ERISA work is. ERISA is fun! The law is always evolving, providing constant intellectual stimulation, and practicing ERISA law is also a great way to help people in need. I also enjoy speaking to women about re-defining what it means to be a successful litigator, and how to challenge traditional law firm standards to achieve a better work-life balance.

Q: What advice would you give to young women who want to pursue a career as an Attorney? 
CSA: Any woman who wants to pursue a career as an attorney should make sure that her potential work environment values diversity and inclusion, fosters a sense of belonging, and creates opportunities for women at every turn. If she is unable to find that environment, she should open her own law firm and create those opportunities herself. 

Q: How do you maintain a work/life balance?
CSA: Being the owner of my firm allows me to make up the rules: I look to the best practices of progressive companies and pick policies that I believe are imperative to work/life balance for everyone. I figure that everything I need to raise four children and work full-time as an attorney is what everyone at my firm needs too. I offer unlimited PTO, great benefits, four months of fully paid maternity leave, the ability to bring children in to work as needed (in fact I have brought each of my babies into work until they needed another environment), the ability to work from home, and a practical approach to parenting … like closing the office on Halloween and Valentine’s Day so that we can all attend class parties without rushing to or from work. I, of course, avail myself of each of these policies, which is why I created them in the first place. That’s not to say that I don’t wake up early to work for a bit so that I can focus fully on my kids to take them to school, or grab a few hours on the weekend to pound out a brief, but family always comes first, for me and for everyone who works at Springer Ayeni.

Q: What’s one lesson you’ve learned in your career that you can share with our audience?
CSA: I have always learned to be myself. If you are authentic, you are compelling as an advocate and a counselor: you listen and communicate better when you are not spending energy on worrying about how you should come across. I also believe in the power of preparation. If you are committed to doing your best and preparing your utmost, then even a negative outcome cannot be met with regret, but a positive outcome is much more likely. And if you’re nervous before a court appearance or speaking engagement, just take a breath and realize that even in a worst-case scenario, you will survive and move forward … we all do.

Q: What are some of the challenges you feel women face today?
CSA: Looking at women lawyers only, there is much progress to be made. As Joan Williams at the UC Hastings Center for WorkLife Law has analyzed convincingly, women lawyers (and women in other fields too) are asked to “prove it,” then “prove it again.” In other words, women need to do the job before getting the promotion, whereas men are promoted based on potential. This is a major obstacle to women’s promotion and needs to be addressed systematically.

Five Things About Cassie Springer Ayeni

1. If you could talk to one famous person past or present, who would it be and why? 
There are so many! But if I had to pick one it would be Harriet Tubman – her courage and vision even in the face of medical problems were and are awe-inspiring.

2. What’s your favorite holiday? Why? 
Valentine’s Day! I don’t view it as just a romantic holiday, but as a day to express to those around you how much you care.

3. If you were a superhero, what would your special powers be?  
Time-traveling. That would be magical!

4. What app can’t you live without?  
Facebook – it has allowed me to make great connections with other lawyer moms – lawmas!

5. Favorite food to eat? 
Strawberries. Now, then, forever, and always.

See the interview at https://bayareawomenmag.com/news/view/11665/Her_Firms_Achievements_-_Results_are_Measured_by_the_Satisfaction_of_Her_Clients_A_Conversation_with_Attorney_Cassie_Springer_Ayeni

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In the Kingdom of the Sick: An ERISA Disability Lawyer’s Perspective

In the Kingdom of the Sick:  An ERISA Disability Lawyer’s Perspective 

By Cassie Springer Ayeni

Springer Ayeni, A Professional Law Corporation

 

“‘Illness is the night-side of life, a more onerous citizenship.  Everyone who is born holds dual citizenship, in the kingdom of the well and the kingdom of the sick . . . sooner or later each of us is obliged, at least for a spell, to identify ourselves as citizens of that other place.’”  – In the Kingdom of the Sick at p. 4 (quoting Susan Sontag).

In Laurie Edwards’s book on chronic illness, In the Kingdom of the Sick:  A Social History of Chronic Illness in America, she takes a broad approach to explain obstacles that people suffering from chronic illness currently encounter.

 Chronic Illness Defined 

Edwards identifies three primary traits in chronic illness:  “the symptoms are invisible, symptoms and disease progression vary from person to person, and the disease progression and worsening or improvement of symptoms are impossible to predict.”  (pp. 32-33.)  She also notes that chronic illness is “treatable, not curable.”  (p. 33.)  Moreover, chronic illness is often accompanied by its life-altering companion, chronic pain, which can make it “excruciating to engage in physical activities, keep up with a regular work schedule, or even leave the house.” (p. 111.)  And it is pervasive.  According to Edwards, chronic illness, which includes heart disease, diabetes, cancer, and asthma, affects nearly 50% of the population.  (p. 11.)  An astounding 81% of hospital admissions are a result of chronic illness, as are 76% of all physician visits. (p. 11.)

Biases Against People with Chronic Illnesses

Edwards devotes much of In the Kingdom of the Sick to explaining the biases that those living with chronic illness encounter, both from an historical perspective and in the modern medical era.  For example, Edwards notes that where conditions lack a cure, which is one of the inherent traits of chronic illness, “blaming the patient often follows suit.”  (p. 6.)  This bias of skepticism leads to potentially devastating consequences:  “45 percent of patients with autoimmune disease were labeled as chronic complainers early in their diagnostic journeys, with the resulting delay in diagnosis often leading to organ damage from lack of appropriate treatment.”  (p. 78.)  In my experience representing ERISA disability claimants for the past 15 years, this inclination towards disbelief extends to the disability insurance context as well, where before a concrete diagnosis is reached insurers are inclined to deny a claim for disability benefits that are based on “self-reported symptoms,” and claimants who cannot seem to overcome their undiagnosed or misunderstood conditions are labeled as “malingerers.”  Indeed, these biases have become so pervasive that the trend in long-term disability plans is to limit the duration of benefits payable for “self-reported conditions,” which is an ever-expanding group of non-fatal, but totally disabling conditions.  Claimants are often left high and dry after receiving the maximum duration of benefits, but still prevented by their lifelong illnesses from returning to gainful employment.

Additionally, most ERISA disability plans are written with a 24-month or shorter maximum duration for “mental illness” conditions.  However, as Edwards points out, people with chronic illness often have secondary depression and anxiety:  “what if the person is anxious because he or she has been sick for weeks or months and physicians can’t seem to help?  What if the person is depressed because he or she is at home sick, isolated from social events and falling behind in work?”  (p. 107.)  In my experience, many disability claims adjusters try to label the mental component as primary in order to justify limited payment duration, often ignoring the severity of the underlying physical condition.

Edwards also does an excellent job examining the historical and pervasive bias against illnesses that primarily strike women.  She states:  “throughout history, deeply ingrained ideas about women as unreliable narrators of their pain and symptoms, as weaker than men, and as histrionic or otherwise ‘emotional’ have had a profound impact on their ability to receive accurate diagnoses and appropriate care.”  (p. 20.)  Added to this inherent bias is the fact that until very recently, “[w]omen were navigating a hierarchical medical system dominated by males; women lacked knowledge and resources to advocate for their health.”  (pp. 76-77.)  Although times are changing as there are more women doctors and as studies are increasingly inclusive of women patients, women with chronic illnesses still encounter shades of these gender biases when diagnosed with conditions like chronic fatigue syndrome, where people “roll their eyes at [these patients] or come right out and tell [them] that CFS is a made up disease, a present-day hysteria, or that ‘everybody gets tired.’” (p. 103.)

Chronic Illness and ERISA Claimants

Edwards aptly notes that people with chronic illnesses are often not able to be accommodated by their employers, since the ability to maintain a regular work schedule is a job necessity.  (p. 66.)  A disability claim is the inevitable conclusion, where the claimants must then “prove” their disability to the insurer.  However, the insurer may be skeptical because of the nature of chronic illness, where sufferers experience some days that are better than others.  Edwards notes that such fluctuation is a hallmark of chronic illness:  “The unpredictability of symptoms and their severity that sets chronic illness apart from certain physical disabilities can also make for ‘unreliable activists,’ individuals who might be able to run workshops or attend policy meetings one day and be bedridden the very next.” (p. 53.)  The chronically ill ERISA claimant may encounter the same culture of skepticism in the insurance context that she likely already experienced when seeking treatment for what ultimately became a disabling condition.  And this culture of disbelief extends to the health benefit context as well.  Edwards poignantly recounts her own experience with chronic illness, stating “I am grateful for the excellent health insurance that I work incredibly hard to provide for my family, and even with that, there are always letters to write, explanations to offer, and battles to wage to convince the people in charge of approving claims that preventative care is truly medically necessary.”  (p. 193.)

Skepticism in LTD benefit applications couples with the shame that many chronically ill patients experience in admitting disability to begin with.  Edward quotes the experience of one woman who had to apply for Social Security Disability Insurance, which is often a requirement of ERISA LTD applicants:  “‘I’m depressed about it because I prefer to live in denial that this is going to be a long-lasting or permanent condition.  And I’m embarrassed because even though rationally I know SSDI is an insurance policy that I paid into since I got my first job at age fourteen, it feels like asking for a handout.  Like it’s trying to go on welfare.’” (p. 55.)

And still another obstacle faced by many ERISA LTD applicants who are chronically ill is the shock of surveillance that captures “clustering” activities to periods of increased energy, which often then results of days of bed rest to make up for the exertion.  Edwards notes that such behavior is a pain management technique rather than an indication of sustained energy, and details that chronically ill patients must engage in extensive planning ahead of time before engaging in everyday routines.  (p. 103.)

A Validating Resource for Patients

Overall, In the Kingdom of the Sick is an excellent resource for people suffering from chronic illnesses to obtain comfort that their experiences of disbelief, bias, and isolation are not unique.  However, because chronic illness is such an extensive topic, at times the book is painted in too-broad strokes.  Edwards tries too hard to lump all chronic illnesses together, such as AIDS, CFIDS, and cancer, to draw the tenuous analogy that people are biased universally against those with chronic illness.  The diseases and the movements behind the diseases may have some links, but are also very distinct, and each disease has its own social bias to overcome to generate more attention and funding.

In this lumping together, Edwards also misses the distinguishing factor in chronic pain conditions – most are not inherently fatal.  She criticizes that the NIH spends 96% less money on chronic pain research than on cancer, cardiovascular disease, and diabetes combined, but these are all potentially life-threatening whereas chronic pain is perceived as more manageable.

Nevertheless, I would certainly recommend that my clients who are suffering from debilitating chronic illnesses read In the Kingdom of the Sick to understand the historical context of chronic illness and to understand the legitimacy of their own experiences and feelings surrounding their illnesses.  I would also recommend that attorneys and doctors alike who are interested in being more compassionate caretakers of their clients and patients read this book.  And, in a dream world, every insurance claims adjuster would read it too before making assumptions tinged with societal bias.

Cassie Springer Ayeni is the President and Founder of Springer Ayeni, A Professional Law Corporation, in Oakland, CA, where she focuses on ERISA disability and life insurance cases.  She can be reached atcassie@benefitslaw.com   or www.benefitslaw.com

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Medical Professionals Who Have Disabilities: Why I Like to Help

By Cassie Springer Ayeni

cassie@benefitslaw.com

www.benefitslaw.com

 

I’ve developed a bit of a niche within my specialization of employee benefits (ERISA) law: I have helped numerous medical professionals secure their partial or complete disability benefits. My clients have been OBGYNs, family medicine practitioners, physical therapists, PICU M.D.s, gastroenterologists, specialized nurses, and more. I wonder: do I gravitate to them or do they gravitate to me?

I’ve always been a money saver, and to further that goal I started working during summers and after school when I was 13 years old. One of my favorite teen jobs was in the file room of my father’s medical office. I would take slips of dictation and put them into the right patient’s file, skimming the details and, without knowing it, becoming familiar with medical terminology and the fascinating process of diagnosis. I loved reading the symptoms, findings, and conclusion that came from every interaction and examination.  I got a lot of paper cuts, but I also learned early lessons in medical analysis and interpretation.

My father is one of a dying breed in the world of medicine: a jack of all trades. He’s a family practitioner, and in the 1970s he even used to deliver babies. He performs and assists on surgeries, sees people of all ages, and is loved by his patients. I am the middle child of the 6 he fathered, and he once told me he thought I would take over his practice someday. But I excelled in writing, not chemistry, and my passion for analysis fell to the pages of Jane Austen and later Supreme Court cases, not to Gray’s Anatomy.

Yet here I am, 15 years into a career that involves reading and interpreting medical records every day, just as I did in my father’s office so many years ago. This time, though, I am reading these records for evidence in support of my client’s employee benefits disability claim against an insurer. I have read through hundreds of thousands of pages of medical records in my career, MRIs, CT Scans, labs and more, figuring out medical shorthand along the way, to make arguments to insurance companies and courts about why the medical evidence demonstrates a lack of work capacity.

Maybe it’s this familiarity with the tools of the trade that has resulted in a plethora of medical professionals as clients: I respect their craft and understand the tip of the iceberg, so I am particularly eager to help these clients out when a disability causes them to cut back their duties or stop working altogether. Whatever the reason, I certainly enjoy representing doctors and nurses, and I feel so fulfilled when one of my medical professional clients recommends a colleague connected to her/him. And by the way, my father is 75 years old and still working nearly full-time as a physician. Life Goals.

Cassie Springer Ayeni is the President of Springer Ayeni, A Professional Law Corporation, in Oakland and San Jose, California. She focuses on representing people in ERISA disability and life insurance cases. She can be reached at cassie@benefitslaw.com or www.benefitslaw.com

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Reforming Disability Claim Procedures Under ERISA

On Dec. 19, 2016, the U.S. Department of Labor published in the Federal Register sweeping reforms to the regulations it issues under Section 503 of the Employee Retirement Income Security Act, aimed at eliminating bias in the ERISA disability claims and review process.

Despite ERISA’s reputation as an erudite law affecting primarily pension plans, the DOL reports that, “An empirical study of ERISA employee benefits litigation from 2006 to 2010 concluded that cases involving long-term disability claims accounted for 64.5 percent of benefits litigation whereas lawsuits involving health care plans and pension plans accounted for only 14.4 percent and 9.3 percent, respectively.” (p. 3.) Hence the DOL’s decision to take aim at the regulations affecting disability plan administration, which is typically handled by insurance carriers.

The DOL noted “the economic incentive for insurance companies to deny otherwise valid claims and because plans are often able to secure a deferential standard of review in court.” (p. 8.) Although the DOL received commentary that disability claims administrators should not be subject to the same rigorous regulations issued under the Affordable Care Act to health plan administrators, “the department views enhancements in procedural safeguards and protections similar to those required for group health plans under the Affordable Care Act as being just as important, if not more important, in the case of claims for disability benefits.” (p. 10.) It noted the need for transparency and accountability in all claims handling. (p. 11.)

The department enhanced protections for disability plan participants in eight ways (pp. 11-12):

Increased independence and impartiality of the decision makers

Adverse decisions must fully explain the reasons for the denials and why evidence of the claimant was disagreed with

Notification to claimants of the right to obtain their claim file and other documents before a final decision is made and to present testimony and other evidence in support of their claim

Provision of an opportunity for claimants to respond to adverse medical opinions before a final decision is made

A guarantee that a claimant can proceed to litigation if the administrator fails to comply with the DOL regulations (stricter than “substantial compliance”)

A guarantee that a rescission of coverage triggers appeal rights under the regulations

Cultural and linguistically appropriate requirements for communications

A requirement that the notice of an adverse benefit determination on review must include a description of any applicable contractual limitations period and its expiration date (p. 54)

But perhaps the biggest protection is the first, requiring impartiality not just in claims decision makers, but also in vocational experts, medical consultants and in-house medical reviewers. (pp. 13-15.) And the DOL understood and took issue with the notion that impartiality could be achieved if the administrator, for example, hires a company who then hires the medical expert for review. It stated: “The text of the rule does not limit its scope to individuals that the plan directly hires. Rather, the rule’s coverage extends to individuals hired or compensated by third parties engaged by the plan with respect to claims.” (p. 15.) It cautioned that such a prohibition should not temper a court’s inquiry into the neutrality of the expert, noting the availability of discovery to probe such matters. (p. 16.)

The DOL further disabused the insurance practice of rejecting experts that would support an approval of benefits in favor or experts that would support denial as inappropriate “expert shopping.” (p. 20.) It found that “[r]equiring plans to explain the basis for disagreeing with experts whose advice the plan sought” should help that problem. (p. 20.) The department couched the requirement to explain disagreement with medical and vocational professionals in denying a claim “as a matter of basic fiduciary accountability.” (p. 22.)

Regarding Social Security disability awards, the department was careful to specify that although it does not expect administrators to defer to a favorable Social Security disability determination, “a more detailed justification would be required in a case where the U.S. Social Security Administration definitions were functionally equivalent to those under the plan.” (p. 25.) It refused, however, to adopt the “treating physician rule” present in Social Security decisions, where the administrator must defer to the opinion of the treating physician. (p. 25.)

The department vigorously defended its decision to allow claimants to review and rebut evidence that would be used to deny a claim. Commenters argued that claimants could provide an endless loop of evidence supporting a claim that the administrator would have to rebut endlessly as well. The DOL dismissed that argument as contrary to fiduciary obligations: “The fiduciary obligation to pay benefits in accordance with the terms of the plan does not require a fiduciary to endlessly rebut credible evidence supplied by a claimant that, if accepted, would be sufficient to justify granting the claim. In fact, an aggressive claims-processing practice of routinely rejecting or seeking to undermine credible evidence supplied by a claimant raises questions about whether a fiduciary, especially one operating under a conflict of interest, is violating the fiduciary’s loyalty obligation under ERISA to act solely in the interest of the plan’s participants and beneficiaries.” (p. 37.)

Controversially, the department approved a “tolling” of timelines for responding to claims and appeals where the claimant submits additional evidence for the administrator to consider. “In the department’s view, the current disability claims regulation ‘special circumstances’ provision permits the extension and tolling expressly added to the group health plan rule under the ACA claims and appeals final rule.” (p. 40.) It remains to be seen if this will deny claimants swift access to the courts or even allow a statute of limitations to expire while tolling is in place. See Heimeshoff v. Hartford Life & Accident Insurance Co., 134 S.Ct. 604, 611 (2013). Perhaps in anticipation of this conundrum, the department addressed the potential problem raised by the Heimeshoff decision where a statute of limitations could expire while a participant was engaging in the mandatory review process prescribed under ERISA Section 503. It stated:

First, Section 503 of ERISA requires that a plan afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review of that decision by 53 an appropriate named fiduciary. The department does not believe that a claims procedure would satisfy the statutory requirement if the plan included a contractual limitations period that expired before the review was concluded …

A limitations period that expires before the conclusion of the plan’s internal appeals process on its face violates ERISA Section 503’s requirement of a full and fair review process. A process that effectively requires the claimant to forego the right to judicial review and thereby insulates the administrator from impartial judicial review falls far short of the statutory fairness standard and undermines the claims administrator’s incentives to decide claims correctly. (pp. 52-53.)

It further stated that a contractual limitations period that does not permit a lawsuit after the conclusion of an administrative appeal “is unenforceable.” (pp. 53-54.) In an effort to provide transparency, the department will now require administrators to state any contractual limitations period “including the date by which the claimant must bring a lawsuit” in a final adverse decision. (p. 53.)

However, the department did not provide much leeway for plan administrators to avoid litigation for failing to comply with the regulations. In fact, for the administrator to argue failure to exhaust administrative remedies despite noncompliance, the administrator’s failure to comply must be all of the following: “(1) de minimis; (2) nonprejudicial; (3) attributable to good cause or matters beyond the plan’s control; (4) in the context of an ongoing good-faith exchange of information; and (5) not reflective of a pattern or practice of noncompliance.” (p. 42.)

The department refused to provide a general rule on the level of deference an administrator would receive from a reviewing court, but did indicate that where the administrator’s noncompliance has resulted in a claim’s deemed exhaustion, the “legal effect of the definition may be that a court would conclude that de novo review is appropriate because of the regulation that determines as a matter of law that no fiduciary discretion was exercised in denying the claim.” (pp. 43-44.)

 

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Can you get benefits when Lyme disease forces you out of your job?

By Cassie Springer Ayeni

It happens:  You’ve been working with Lyme disease for years and stumbling along.  Some days/months are better than others, but you’ve been determined to keep working in a career you love.  But then, gradually, it all becomes too much.  You’re not bouncing back as well. Even though you rest from the moment you get home until when you leave for work the next day, giving up social engagements, relying on others to pick up the kids, and getting take-out dinners more than you would like, you are still struggling to get through the workday.

You see your doctor and she tells you the time has come for you to take some time off of work and focus on getting better. You are disabled from working. Now what? How will you live without your income? Here are some options and a plan.

 

1. There Are Several Sources for Disability Benefits

Besides savings (and it is almost unheard of for someone in the prime of her working life to have sufficient savings to live decently for the rest of her days), income sources for people with disabilities include:

• ERISA-governed employee benefit plans (short-term disability then long-term disability). Long-term disability usually starts after 6 months and can last until retirement age.
  • These benefits are usually tax-free if you paid the premiums with your after-tax earnings, but taxable if your employer paid the premiums.
• Private disability insurance plans (also lasting until retirement age).
  • These benefits are usually not taxable.
• State disability insurance that usually last for a year (like California’s EDD).
  • These benefits are usually not taxable.
• Social Security Disability Benefits (available after being disabled for six months and lasting through retirement age).
  • These benefits are sometimes taxable, depending on your household income.

Here, I will focus on the first prong of these income sources:  short- and long-term disability benefit plans offered by your employer. Many employers offer these group disability plans to all of their employees because the premiums are low and they can be a huge benefit to employees struck with a disability, whether short or long-term. Some employees never even realize that these benefits are in place, so be sure to check with HR or review your handbook as you are preparing to go out on disability.

However, a complex area of law called ERISA (the Employee Retirement Income Security Act) governs these employee benefit plans, even though you usually apply to an insurance company for payment of the benefits. Under ERISA, there are technical rules governing timelines for the insurance company to decide whether to pay your claim.

Even though you have a disability plan through your employer, you can still apply for all of the other disability benefits listed above. However, the benefits are usually coordinated so that you only receive a fixed percentage of your salary altogether, usually 2/3 or 60%.

 

2. Your Doctor’s Role

Most people with Lyme disease have a long-standing relationship with a supportive doctor.  This is instrumental to getting your disability benefit claims approved. Please make sure that your doctor knows how important it is that she fills out forms promptly so that your income stream can continue while you are not working. Here are some key tips for the “Attending Physician Statements” that you submit to the insurance company.

• Your doctor should answer the question “why is the patient disabled now?” especially if you have been working with Lyme disease for a while. Did it worsen? Is the fatigue getting the best of you? Is it now interfering with your ability to perform the activities of daily living, such as preparing meals? Ask your doctor to be specific and make sure this is in your medical record.
• Your doctor should point out that you are credible in your symptom reporting. When your doctor notes this, it helps prevent the insurance company from doubting your credibility, an unfortunately common reality when insurance companies are looking for a way to cut costs.
• Regularly schedule check-ups. Even though your condition may not get better with treatment, it is a good idea to see your doctor anyway every 6-12 months. This helps demonstrate to the insurance company that you are under the regular care of an attending physician. Also, insurance companies typically request medical records every 6-12 months.
• If you don’t already have an ERISA lawyer, you might want to check in with one now. Your lawyer can work with your doctor to get the forms filled out the right way the first time.

3. Submitting the Application.

Finally, your doctor is on board and you have made the decision that resting without working is in the best interest of your health. Here is a checklist for your disability application:

• Request the short- and long-term disability application forms from HR.
• Request a copy of the short- and long-term disability policies from HR. These plan documents tell you some important information, like:
  • The definition of disability. Make sure there is no “exclusion or limitation” for Lyme disease
  • The Elimination Period. This tells you how long you have to be disabled before benefits start.
  • The benefit amount. Typically this is 2/3 of your salary, when all sources of disability income are combined. There is often a “maximum” benefit, which high income earners need to be aware of.
  • When the definition of disability “shifts.” Typically, for the first 24 months you are entitled to benefits if you are disabled from your regular occupation, and after 24 months you have to be disabled from “any occupation.”
  • Duration of benefits. ERISA disability benefits usually last until retirement age or age 65, or until you are no longer disabled.
  • The process for appealing a denied claim.

• Take a stab at filling out the application forms, but do not feel limited to the boxes on the forms. If you need extra space, include an addendum. If the question on the form doesn’t really apply to you, modify the question and answer to state what needs to be said about why you are disabled.
• Make sure that your employer knows they will have to fill out a form verifying your income and job duties.
• If it’s too overwhelming, ask an ERISA attorney to check your work to make sure that your application gives you the best shot at success. A skilled ERISA attorney will look for problems in your draft, and will also supplement an application with declarations and other information that will help an approval from the outset.
• And, if your application is denied, you must engage in the “appeals process” with the insurance company by the deadline, or you will lose your right to your claim. The appeal needs to contain ample medical and other evidence in support of your claim; it must be more than a letter stating “I appeal.”  However, coming from someone who has handled hundreds of these appeals, you should never attempt to appeal on your own without the benefit of  legal advice. The appeal stage is crucial, as you may be limited to the evidence of disability you present at this stage if you ever have to go to court.

Cassie Springer Ayeni is the President and Founder of Springer Ayeni, A Professional Law Corporation, in Oakland, CA, where she focuses on ERISA disability and life insurance cases.  She can be reached at cassie@benefitslaw.com  or www.benefitslaw.com.

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