Sorry, but almost certainly you will not have your day in court in a long-term disability insurance claim governed by ERISA (distinguished from an individual LTD policy, where you will be able to go to court and testify).  Instead, your documents (almost entirely comprised of medical records) will have their day in court for you, since in nearly all ERISA long-term disability insurance denial cases testimony is not allowed.  The problem is the human factor is missing.  The suffering, the physical limitations, the fatigue, the sense of determination, fair play and even humor that nearly all LTD claimant’s bring into the picture, a very compelling picture, is all absent from the review process.

The Importance of the Human Factor
This is perhaps the greatest frustration in representing people denied long term disability insurance benefits in the appeal and court process.  What is achingly obvious to me when I get to know a client is that their suffering is not brought out by paperwork alone.  I believe this is why long-term disability insurance companies generally do not have a claimant actually examined by a doctor.  It is so much easier for an insurance doctor to merely read a medical report and conclude the person is fit to return to work, than to actually see and talk to the person and realize this person really cannot return to the workplace.  One brief illustration from a case several years ago:  My client was a woman in her late 40’s with serious pulmonary and cardiac disease.  She had a hole cut in her throat to assist with breathing, which made talking difficult and noticeably altered her voice.  Interestingly, the insurance company (they never met this woman, nor did their doctor) denied her appeal, finding she could work sedentary jobs such as being a receptionist, where she would primarily just have to talk on the phone.  When I pointed out the problem with this excellent suggestion, and invited them to meet and have a conversation with my client, they agreed benefits probably should be reinstated.  This scenario sounds a bit extreme, but it is not.

Write Your Story
Given ERISA rules are not going to be changed soon, what can a claimant do to be heard?  Write your own story and be certain it is in the insurance claim file.  Do not worry about your writing skills.  The honesty and sincerity of your situation will come through in your own words.  I’ve seen it countless times. Write about what your physical and/or mental condition has done to your daily life, both at work and at home.  Write about what you could do before the disabling condition, and the difference now.  Write about the trials of making it through a single eight-hour workday, let alone a forty hour week.  Write about the condition or disease and the number of medications you have to take.  Write about the effect of the medication on your life.  Illustrate your writing with photos.  Perhaps best of all make a video of your statement to send to the insurance company.  Have a spouse, partner or friend conduct a simple interview where they ask you to describe what the disease has done to your life both at work and home.  The video is so powerful because now the insurance representative and the judge will see you and hear you describe your life.  Remember, your own statement and/or video may be the only way you will have your day in court in an ERISA governed long term disability insurance claim.

Randy Noah, a lawyer specializing in the representation of individuals denied long-term disability insurance benefits.  For more information please visit prandallnoah.com.

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