Why hire Herbert M. Hill, P.A.?
Posted on 11. Apr, 2013 by herb in Blog
One of the great advantages my firm offers is the fact that I am paperless. The cases I handle typically would have so much paper that up to three (3) or four (4) boxes would be necessary. Some time ago, I took my office paperless. By this, I specifically intend to use the first person singular because I personally scanned virtually every document in my office. This allowed me to carefully organize all my files and set them up for a very specific arrangement for new files. New documentation is scanned on the day it is received except sometimes when a large scanning job comes in. Even those are done within a day or two.
Now my files are organized in way which allows my administrative assistant and myself to very quickly obtain and review any document in the file. No more is there any need to get up and go get the file, check to see if all the filing is current and sit down to review the entire file in order to respond to whatever particular question a client may have. This process streamlines client representation in a way which works to my client’s benefit in that inquiries can be more readily addressed. It also saves my clients significant amounts of money for copying charges considering the amounts of paperwork involved when one considers that typical copying charges are $.25 per page. Please know that I do not treat client costs as a profit center as many attorneys unfortunately often do.
Another question I am asked a fair amount is whether my one man law firm can successfully deal with large insurance companies and the large law firms they hire to represent them. The answer to this question relates in part to the points made above about being paperless. It is quite astonishing that many large law firms and insurance companies have yet to go paperless. They still experience the negative impact of dealing with cumbersome amounts of paper. Quite simply, they cannot stay up with me. I get paperwork from the insurance company or its law firm and I generally respond to it that day, putting the ball back in their court. This way we keep them off balance and responding to us rather than vice versa. Just so it is clear, I was able to do this before going paperless but now it is a routine matter of course.
Besides these tactical advantages, I enjoy battling the insurance companies and their silk stocking lawyers. I remember when I first graduated from law school and went to work for one of those law firms. While I can still dress with the best of them when it is time to do so, I am one who is ready to roll up his sleeves and do the daily, in the trenches work which makes for a successful claim. As far as battling the insurance companies is concerned, it is one reason I am so passionate about representing my clients. I get to represent living, breathing people with hearts and souls who need my help against the conglomerate which set up the deal long before my client saw it coming. No one believes they will ever become disabled when they take out these policies. No one wants to be disabled. No one wants to be known as being disabled. Yet, here they are- disabled and in need of the financial help they paid the insurance company to provide, Yet the insurance is seeking every way to get out from under its obligation. As I tell my clients, sometimes the role I play is that of the hammer being held over the insurance company forcing them to do the right thing. It was my pleasure to receive as a gift from a client recently a hammer because she thought I did such a good job of doing exactly that. I can undertake that same task on your behalf, a task which the average layman is usually ill equipped to undertake.
The law office of Herbert M. Hill, P.A. represents clients throughout the southeastern part of the country. We would be happy to assist if you are having difficulty with any issue arising out of your private short term disability or long term disability policy claim or any claim arising under the Employee Retirement Income Security Act (ERISA), including claims for short term disability benefits, long term disability benefits, pension benefits, 401k claim, group medical claim or any other employer provided benefits which you believe you have been wrongfully denied.
You can contact Herbert M. Hill at www.herbertmhill.com or at (407)839-0005. You are also welcome to Email Herbert Hill directly at hmh@herbertmhill.com.
Insurance Company Contact with Health Care Providers
Posted on 08. Nov, 2012 by herb in Blog, Herbert M. Hill On Disability Law
One topic which has weighed on my mind recently is that of Insurance Company contact with my client’s Health Care Providers. Too often this is handled in a fashion designed to discount or even change the clear opinions of your doctors regarding their medical findings and related physical restrictions. Let me identify some of the tactics employed by Insurance Companies to this end.
The first tactic involves a letter sent to your treating doctor asking him to sign off on some statement allegedly made during a telephone conference with either the doctor or one of his staff. This is coupled with a demand for an immediate response. Then, when the artificial deadline is not met, the suggestion is made that the doctor is uncooperative. Usually, that deadline is the result of the insurance company sitting on the claim for so long that it does, in fact, need something immediately but only because it wants to “look busy” in the face of its own inactivity and hopefully place the blame elsewhere for its own failure to act. Of course, your doctor is running a real world medical practice with in office and out of the office appointments and schedules which have been pre-set and must be met. Also, the doctor has a reasonable expectation of being compensated for his or her work, something almost never offered by the insurance companies. Indeed, if the offer to pay was made, the doctor would likely take the time to fully consider the matter, something the insurance company does not want when it is trying to put words in the doctor’s mouth.
I love to call insurance companies “it” because, in fact, that is what they are. Despite the commercials about being on your side, insurance companies are heartless and soulless legal fictions with no purpose other than to make money. You are the one at whose expense the effort is now being made to make that money by saving on the payment of a legitimate claim for benefits which they agreed to pay, at least when the premiums were being paid.
Another tactic is for the insurance company to have its hired gun “medical records reviewers” call up and impose upon an alleged professional courtesy with your treating doctor, insisting that the phone call be taken immediately. The number of times the author has seen these medical records reviewers make comments about treating doctor’s findings totally inapposite to the actual opinions expressed by the treating doctor would be considered astonishing if it were not the actual routine practice employed by these insurance company hired guns.
One of the first steps taken by Herbert M. Hill, P.A. when hired for representation on a disability benefits claim, whether on a private policy or on a group policy governed by ERISA, in which benefits have been denied is to advise the insurance that there is to be no further contact with my client treating doctors without our prior knowledge. All such communications have to be in writing and given to us as well such that we can ensure the doctor is given adequate time to respond and fully consider the opinion he is being asked to render. Every effort is made to tightly control such contact. This is necessary because we are never given the chance to speak with the physicians hired by the insurance company about the predetermined opinions for which they routinely pay.
Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving policies of disability insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.
Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern United States. Areas of practice include disability and employment benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability insurance policies.
Beware the Claims Representative who is your Buddy
Posted on 24. Jul, 2012 by herb in Blog
This is the guy who hold himself out as your friend. He will tell you everything is fine and not to worry. He will appear helpful and, at least at first, may be so. Please do not be drawn in. Do not tell personal information which is no business of the insurance company. Remember that the insurance company is seeking to accumulate information to ultimately deny benefits. Sometimes, the insurance company correctly assesses that the best way to effectuate this long term goal is to pay benefits and act friendly and supportive. You must keep in mind that while the Claims Representative is being your buddy he is still answering all questions you might have from the insurance company’s point of view, in a way slanted in its favor. Of particular import in that last sentence is the use of the term “it.” You must keep in mind that an insurance company is a corporation which is a legal fiction created by statute. Supposedly, its sole purpose is to make money for its shareholders although a lot of corporate executives also use them as money making playgrounds as well. Nonetheless, one way or the other, corporate profits, i.e., making money, is the sole purpose. If “buddying up” to you in the short term will help them accomplish that purpose in the long run, then that tactic will be used as well.
You will know that things have gone awry when there is a change in your Claims Representative. This is a sure sign of storm clouds on the horizon. You will now meet the hatchet man who will forget all the “we will take care of you” promises made by your former buddy who is now off being some other unsuspecting soul’s buddy. In the meantime, you are being informed out of the blue with no warning whatsoever that benefits have being terminated, sometimes with just a cold, impersonal phone call or voice mail from a new Claims Representative you have never heard of before. This call will sometimes come even soon after your buddy had called and told you everything is set- set for what, he did not tell you. The amazing thing is they will often have the audacity to suggest you can handle the all important appeal of the benefit denial on your own without the assistance of an attorney.
Now, this is not to say you should not be polite to the insurance company’s representatives. Just please be wary of any intimation on the part of your Claims Representative. They will use this tactic specifically to obtain information concerning your financial circumstances and other specifics regarding your living situation. This will ultimately be used against you if your claim ever gets to the point of a lawsuit, at which time the insurance will try to “starve you out” to get you to settle for less. It is a sad commentary but true. While I push to move every case along as best I can, the number of clients I have to refer to a bankruptcy attorney is a sad testament to this truth.
It is my purposes that you treat your claim as the serious business it really is. It involves a business transaction relating a very important income stream necessary for you to support yourself and your family.
Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving policies of disability insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.
Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern United States. Areas of practice include disability and employment benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.
Exhaustion of Administrative Remedies
Posted on 13. Dec, 2011 by herb in Blog, Herbert M. Hill On Disability Law
One quirk of claims governed by ERISA is the requirement that “administrative remedies” be exhausted prior to the filing of a lawsuit to enforce rights to the claimed benefit entitlement. “Quirk” is a polite term because the requirement is, quite frankly, another one of the numerous mechanisms provided in the ERISA statute which slants the provisions thereof unfairly in the favor of the Employers and Insurance Companies. As discussed elsewhere on this website, the Plan Administrator (usually the insurance company) is given discretionary authority in rendering its benefits determination which must be given deference by the reviewing Court of Law.
The exhaustion of administrative remedies requirement basically forces the claimant to engage in the administrative appeal process set up by the Plan Administrator. While there are federal regulations governing the process, the end result is typically untoward delay in addressing the issue of entitlement. The process is supposed to one in which the Plan Administrator is required to consider all of the evidence but typically the process is just one which allows them to gather further evidence in their favor and fill in those places where mistakes were made in past handling of the claim. It is apparent to the undersigned that the merits of the case are not the primary concern but instead there are policy decisions made about certain claims and no amount of supportive evidence will change whatever policy decision has been made regarding a benefit denial.
Case law governing the “exhaustion of remedies” requirement is clear even though there is no express provision in ERISA requiring as much. Exhaustion of remedies is a requirement imposed on the claimant as a matter of case law grafted onto the ERISA statute’s language. In the 11th Circuit, where most claims of the writer pend, the court has specifically held the administrative remedies must be exhausted prior to the filing of a lawsuit. Perrino v. Southern Bell Tel. & Tel. Co., 209 f.3f 1309 (11th cir. 2009). However, the rule is not without exception. Generally, if the administrative process can be shown to be futile or inadequate then the requirement will be waived. Curry v. Contract Fabricators, Inc. Profit sharing Plan, 891 F.2d 842 (11th Cir. 1990). Another basis for waiver of the requirement would exist if there is language in the governing Plans Documents which reasonably leads the claimant to believe he can proceed directly to Court. Watts v Bellsouth Telecomm., Inc., 316 F.3d 1203 (11th Cir. 2003).
In any event, the administrative appeal process set up by the Plan Administrator must be followed. The governing federal regulations allow a claimant 180 days to appeal the initial denial of claims involving disability benefits. Other time frames may apply for other appeals or types of benefits. See, generally, 29 C.F.R. §2560. The claimant must be careful to comply with these deadlines as the failure to appeal within these deadlines could be the death knell to the claim. One must, under no circumstance allow the deadline to pass without affirmatively placing some form of document in the possession of the Plan Administrator claiming the right to appeal. Sending the document with some proof of delivery is important.
The appeal should include all evidence which supports the claimed entitlement together with a rebuttal of the points made in the letter of denial. Remember that doctor’s records generally address medical issues and the specific issues governing the entitlement to the legal claims made the subject of the benefit entitlement to be enforced. Some specific input from your doctor would be appropriate in claims with medico/legal issues. Please keep in mind that the appeal will likely be your last chance to get evidence before the Plan Administrator and, ultimately, the Judge. It must been done with thoroughness.
Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving policies of disability insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.
Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern United States. Areas of practice include disability and employment benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.
Communications with the Insurance Company
Posted on 21. Jul, 2011 by herb in Blog, Herbert M. Hill On Disability Law
It is important that all communications with representatives of the Insurance Company are handled in a very precise manner.
The first subject is written communications. I do not want to suggest the letters you send the insurance company end up in the trash can but I have had numerous complaints from clients that the insurance company has denied receipt of documentation or correspondence which they have sent. All written communications should be sent in a way in which delivery can be verified. This can be by Certified Mail, Return Receipt Requested or by way of courier service. Ensure that you keep a copy of what was sent as well as the document which evidences delivery. Facsimile transmittal can be used as long as there is a cover sheet indicating the number of pages sent . When using facsimile also ensure you keep copy of the “transmission report” which every facsimile machine can generate. This will evidence the telephone number to which the document was sent, as well as the date and time. If your doctor or anyone else on your behalf sends documentation directly to the insurance company, get a copy of what was sent and then send it again yourself.
Regarding written communications from the insurance company, please keep not only the letter or documents received but also keep the envelope and mark on the face of the envelope the date you received it. More often than not, the insurance company’s letters are not mailed on the date found on the face of the letter. The postmark on the envelope evidences the date of mailing. The reason it is important to know the date you received some letters is because some time frames commence from the date of receipt.
Keep a copy of all documents to and from the insurance company in a file in one place, in a chronological order.
The second subject is oral communications. These should be handled with your personal “case diary” before you. Note the date and time of the conversation. Before you engage in the substance of the conversation, ensure that you get the representative’s full name (“Bob” is not enough). If they will not give it, either get their employee number or refuse to talk to them. They know your full name. You must be able to get back in touch with them or at least be able to identify with whom you spoke.. Along these lines, get a return telephone number with a direct extension. Again, if they will not give this, refuse to talk to them. They know how to get in touch with you easily. You should not be forced to work your way through the impenetrable telephone maze which many insurance companies have in place. Only after you are on a level playing field should you talk with them. Again, these things should be done at the beginning of the conversation. During the conversation, keep notes on what was said, letting them know you are doing so. One good way to do this is to get them to repeat something they said “just so I make sure I understand.” Also, make sure your questions (the ones you have noted in your case diary) get answered.
Oral communications are problematic because at the beginning of the claim, the claims representative will try to be your “buddy,” as if they are on your side. This is especially so when benefits have been approved. In fact, when a new claims representative later calls you, please ask why the change. What has probably happened is that a adverse decision has already been made and now you will deal with the “hatchet” man (or woman). They will not remember all the fair weather representations made by your “buddy.”
Take these communications seriously. Insurance companies are not really in the business of paying benefits. That costs them money. They are in the business of collecting premiums and keeping pay outs to a minimum, to the point of a lawsuit, if necessary. Indeed, insurance companies are as much in the litigation business as are attorneys. Their representatives are highly trained to this end, even the “buddies.” Remember that insurance companies already have attorneys on staff who direct the claims handling process. When your case becomes too expensive or looks like there may be a long pay out, efforts will be made by the insurance company to reduce its exposure. Yes, an insurance company is an “it” which has no care whatsoever for you, despite the friendly voice on the telephone line. An insurance company is a legal fiction which by its nature is heartless and soulless whose only reason for existence is to generate a profitable bottom line for its shareholders. If you want to read a chilling comment on the subject, I offer one from Abraham Lincoln from almost 150 years ago which I believe is coming to pass these days before our very eyes:
”I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed. I feel at this moment more anxiety for the safety of my country than ever before, even in the midst of war. God grant that my suspicions may prove groundless.”
– U.S. President Abraham Lincoln, Nov. 21, 1864 (letter to Col. William F. Elkins)
When talking with a claims representative, always keep in mind with whom you are really dealing!
Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving policies of disability insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.
Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern United States. Areas of practice include disability and employment benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.
Social Security Reimbursement Agreement
Posted on 27. May, 2011 by herb in Blog, Herbert M. Hill On Disability Law
Of the many documents which an Insurance Company may submit to you in connection with commencement of either your claim or the later payment of benefits, is one typically entitled “Social Security Reimbursement Agreement,” or words to that effect. Many inquiries have been received about whether this document should be signed. This is one instance in which the answer is a rather simple “yes” but let me explain the reasoning.
As discussed elsewhere on this website, the Insurance Company is typically entitled to an offset of at least part of the benefits you receive from the Social Security Administration. I say “typically” because this is often the case; however, the Plan Documents governing your benefit entitlement should be examined to determine whether the Insurance Company can rightfully claim this offset. The Plan Documents and securing a copy thereof is also a topic addressed elsewhere on this website.
One reason the Insurance Company requests the Social Security Reimbursement Agreement is to ensure that you understand the offset (presuming it exists). Also, it is not unusual for group Long Term Disability benefits to be paid prior to an award and payment of Social Security benefits. The Insurance Company will agree to pay the gross or full amount (before the offset) of group Long Term Disability as long as the Social Security Reimbursement Agreement is signed evidencing an understanding of the entitlement to an offset and, more importantly, the potential obligation to “reimburse” the Insurance Company for any overpayment resulting from a subsequent award of Social Security benefits.
There are couple of points to keep in mind. First, there typically is no offset against Short Term Disability benefits because the Social Security Administration does not pay benefits from the date of disability. Second, the amount of the offset which the Insurance Company can claim is limited to the “Primary Insurance Amount” which, for present purposes, can be described as the amount of Social Security benefits due in the first month of entitlement thereto. The effect of this is that the Insurance Company is not entitled to offset any subsequent “Cost of Living Adjustments” paid by the Social Security Administration.
One point which must be kept in mind is the hiring of an attorney for purposes of pursuing your Social Security claim. If you get to the point of needing to do so, it is suggested that you do not use the attorney recommended by the Insurance Company even though they suggest they will pay the attorney’s fee. It is disingenuous for them to make this suggestion. First, you should have your own local attorney represent you rather than one of the nationwide, impersonal Social Security attorney firms. Second, any fee you incur as a result of representation will ordinarily be deducted from any amount you are required to reimburse the Insurance Company from any overpayment resulting from receipt of Social Security benefits.
Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving disability policies of insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge.
Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern United States. Areas of practice include disability and employment benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.
Surveillance- Who’s Watching You?
Posted on 21. Apr, 2011 by herb in Blog, FAQs
Insurance Companies routinely use surveillance investigators to tail and videotape the activities of claimants. About the only thing which is off limits is filming activities inside the home. My advice to my clients is to live your life as if the insurance company has someone watching you at all times. This is not intended as a direction to curtail your activities. It is just a reminder that on the one day in the last month on which your condition has allowed you to go out and run those long overdue errands, or take the garbage can down to the end of the driveway or lean over and pick that one weed, the insurance company may have someone right there filming you. In fact, the insurance company may have someone follow you around the grocery store with a camera hidden in the kiddie seat of the grocery cart. Another trick is to schedule a doctor’s appointment or Functional Capacity Evaluation. For some reason, the provider will be at some distance from your house. You can rest assured you will filmed during that trip. On the other hand, no one will film you the next three (3) days while you lay in bed trying to recover from the over-exertion.
Having an investigator follow you is not the only type of surveillance which insurance companies use. If the insurance company sends you to a doctor for an Independent Medical Examination or for a Functional Capacity Evaluation, the office staff will be asked to watch and see if your physical actions are consistent with your effort during the evaluation. It is the opinion of this writer that the insurance company cannot rightfully ask the evaluator’s office to go above and beyond the evaluation itself. This would make the medical evaluator also a fact witness. This is something to which the claimant did not agree by cooperating with the request for the evaluation.
There is an additional problem with surveillance in cases governed by the federal statute commonly referred to as the Employee Retirement Income Security Act (“ERISA”), found at 29 U.S.C. §10101 et seq. As discussed elsewhere on this website, there is case law which may limit the evidence which a claimant can present in Court to support the claim for benefits under ERISA. There may never be the opportunity to cross examine the fact witness who provides surveillance evidence. For example, the investigator whose only training consists of being taught how turn on and point a camera will routinely make medical opinion statements in the “reports” he files even though he is grossly unqualified to do so. The same is true of the medical staff which suggests that claimant’s actions were different in the parking lot than in the office. These unsubstantiated statements are not subject to cross examination yet there they are in the documents submitted by the insurance company to the Judge in support of the benefit denial.
Fortunately, the Courts have recognized that surveillance has a limited use in benefit determinations. An example of a case which addressed the issue is Cross v. Metropolitan Life Ins. Co., 2008 WL 4216555 (11th Cir. 2008). That case properly recognized that surveillance is but a mere “snapshot” of activity which fails to take into account the increased pain due to those activities. While the Cross case included overstatement by the insurance company regarding the surveillance, the case of Ridge v. Hartford Life & Acc. Inso. Co., 239 F. Supp. 2d 1323 (M.D. Fla. 2004) demonstrates the lengths insurance companies will go on these matters. In the Ridge case, the Court found that the insurance company had surreptitiously secured a prescription from a treating physician for a Functional Capacity Evaluation. On the point of surveillance, the Court found the surveillance film was not proof, standing alone, of disability. It is noted that the opinion of the Court in Ridge was vacated after the parties later settled the case. Ridge v. Hartford Life & Acc. Ins. Co., 2005 WL 889964 (M. D. Fla. 2005).
There are the highly publicized situations in which an insurance company has discovered, through surveillance, a claimant who is performing in a manner grossly inconsistent with the reports to the treating physician. Those cases do exist but in the vast majority of cases involving surveillance shows nothing of significance. In fact, “nothing of significance” should indicate that surveillance supports the claim for benefits. Insurance companies rarely see it that way. Insurance companies routinely uses surveillance to support a predetermined conclusion not actually supported thereby. While all surveillance materials are taken quite seriously, the author has practiced law over 30 years and has only seen surveillance which required him to specifically confront a client with the contents thereof on three (3) occasions. On two (2) of those occasions, the client truthfully said the doctor knew of the activity and had okayed it (one including scuba diving!). This means that out of the many hundreds of surveillance films reviewed, only once did it prove of any significance to the case. Notwithstanding, all surveillance must be taken seriously.
The only legitimate conclusion is that insurance companies routinely use surveillance to support predetermined conclusions. My clients can rest assured that they will be carefully advised about surveillance and issues arising as a result thereof.
The law office of Herbert M. Hill, P.A. represents clients throughout the southeastern part of the country. We would be happy to assist if you are having difficulty with any issue arising out of your private short term disability or long term disability policy claim or any claim arising under the Employee Retirement Income Security Act (ERISA), including claims for short term disability benefits, long term disability benefits, pension benefits, 401k claim, group medical claim or any other employer provided benefits which you believe you have been wrongfully denied.
You can contact Herbert M. Hill at www.herbertmhill.com or at (407)839-0005. You are also welcome to Email Herbert Hill directly at hmh@herbertmhill.com.
Benefit Limitations – “Mental/Nervous” or “Self Reported Conditions”
Posted on 16. Mar, 2011 by herb in Blog, Herbert M. Hill On Disability Law
In the typical claim for Long Term Disability benefits governed by the federal statute commonly referred to as ERISA (Employee Retirement Income Security Act), if benefits are initially approved and you remain disabled, the next important point in your claim will come, typically, after receipt of benefits for 24 months. I say typically because the Plan Documents governing the benefits vary from employer to employer. The following is written based on the standard policies which the law firm of Herbert M. Hill, P.A. reviews. That experience extends to claims arising out of employment throughout the southeastern section of the country. In any event, in all cases, your situation must be tailored to the terms of the governing Plan Documents.
If you have questions about the contents of the “Plan Documents,”please see my writings on that subject found elsewhere on this website.
In any event, after 24 months, two (2) important issues may arise. First, at the 24 month point in time, there typically is a change in the definition of the term “disability” relative the occupation to which it applies Second, there are typically certain medical conditions for which benefits are limited to a 24 month entitlement. I will address the second issue in this writing. The first is addressed elsewhere on this website under a writing entitled Benefit Limitations – “Own Occupation” v. “Any Occupation”
In any event, most Plan Documents (but certainly not all) provide for a limitation on the period benefits are paid, usually 24 months, for disability involving mental or nervous conditions. As to what constitutes a mental or nervous condition, there may or may not be a definition of the meaning of this term. As far as that definition is concerned, the legal maxim of contra preferentum, which stands for the proposition that a vague or ambiguous documents will be construed against the author, would result in a narrow construction and application of any such limitation.
The specific language of the Plan Documents needs to be carefully reviewed because there are two (2) types of clauses currently in use in the industry. The first is a clause which provides for the limitation in benefits is the disability “is caused by” or “due to” a mental or nervous condition. The approach here would be to ensure that any underlying medical or physical problems is properly addressed so as to make it clear that, if it can be done, the mental or nervous condition is secondary to or an adjunct of the truly disabling condition, the underlying physical condition. Of course, the medical evidence may not lend itself to this proposition but the point must be carefully explored and presented to party charged with rendering the benefits determination.
The second type of clause which might be found in Plan Documents is more problematic. This is a clause which provides for the limitation if the mental or nervous condition “causes, or contributes to,” the disability, or words that effect. However, the undersigned would suggest that every disabling physical condition is, at first, a medical problem. Then it becomes an economic problem when it prevents us from working. Working goes at the core of our self identification. It is how we support ourselves and our loved ones. When we are unable to do so because of a medical condition it almost always becomes an emotional issue as well. If so, the insurance company might use this as a way of limiting benefits under this second type of clause. Indeed, just about every employee who is off work because of a physical medical condition might end up falling under this clause. Now, please understand that I am not suggesting that you not seek treatment for mental or nervous conditions in this circumstance. It is just that it will be necessary to carefully present the claim in a manner which makes it clear that the mental or nervous would not be present but for the underlying physical problem or that the employee could work if the mental or nervous condition were the only problem.
Either way, claims involving mental or nervous must be approached very carefully to avoid these tender traps laid by the insurance companies for the unwary.
There are other conditions which might also fall under a similar type of benefits limitation clause. The undersigned has seen Plan Documents limiting benefits in a similar manner for claims involving fibromyalgia, chronic fatigue syndrome and other conditions which insurance companies think involve only self reported symptoms. Again, the contra preferentum legal maxim would apply but the approach on such claims must, nonetheless, be made very carefully.
The law office of Herbert M. Hill, P.A. represents clients throughout the southeastern part of the country. We would be happy to assist if you are having difficulty with any issue arising out of your private short term disability or long term disability policy claim or any claim arising under the Employee Retirement Income Security Act (ERISA), including claims for short term disability benefits, long term disability benefits, pension benefits, 401k claim, group medical claim or any other employer provided benefits which you believe you have been wrongfully denied.
You can contact Herbert M. Hill at www.herbertmhill.com or at (407)839-0005. You are also welcome to Email Herbert Hill directly at hmh@herbertmhill.com.
How does an Overpayment occur in a Disability claim?
Posted on 19. Oct, 2010 by herb in FAQs
It is unfortunate that so many people do not realize that the disability insurance company is allowed to offset benefits you receive from other sources, thereby dramatically reducing or even, in some cases, eliminating the benefit entitlement. Just about every person who comes to me is surprised to learn that the disability benefits they paid for are not over and above “other benefits” to which they are also entitled. Those “other benefits” which your disability insurance company might claim as an offset against (or, reduction of) your disability benefits might include Social Security Disability benefits, workers’ compensation benefits, claims against third parties who cause the disabling medical condition, retirement benefits and others. The governing Plan Documents, “Summary Plan Description” and insurance policy need to be reviewed in detail to determine which “other benefits” can be used to offset benefits. Also, the method by which the deduction can be taken needs to be considered. Issues concerning receipt of lump sums of “other benefits” routinely arise as well.
The strange phenomena I have experienced is that when these other benefits are received, the disability insurance company will simultaneously claim the overpayment and then soon after find a reason to deny the benefits they owe. This may seem somewhat astonishing but that is only because it is. The point being that when you receive “other benefits” from other sources, you need to proceed with caution. The first issue is the correct amount of the overpayment. This is one area in which this author can provide particular assistance because the undergraduate degree I received before going to law school was that of a Bachelor of Science in Business Administration with a major in Accounting. I am not suggesting I can assist you with tax or accounting issues; I just have no problem dealing with numbers which can get quite complicated in these situations.
When is the best time to hire a disability lawyer?
Posted on 08. Sep, 2010 by chad in FAQs
It is important to consult an attorney as soon as you become concerned that it may be necessary to pursue disability benefits, whether on a Short Term or Long Term basis. It may not be necessary to actually retain an attorney at this time but it would be important to get some advice about the “in and outs” of the process so that you can determine when it is, in fact, necessary to retain an attorney. Also, establishing a relationship with an attorney early on would allow you to get input throughout the process as necessary. This is especially true when you have questions about the process.
You must remember that the insurance company’s claims representative is answering your questions in a manner most beneficial to the interests of the insurance company, not in your interest. Many persons with a clear entitlement to benefits either lose those rights or hamper the ability to secure prompt payment thereof as a result of trying to go it alone. Remember you are seeking to protect the very income stream on which you will rely to maintain your lifestyle. It is fair to say that this is one of the most valuable assets you have. The attempt to “go it alone” routinely results in mis-steps in the application phase of the claim or thereafter resulting from either ignorance of the intricacies of that process or misplaced reliance on representations made by the claims representative.
Remember that while this is a right you earned and paid for, that fact does not necessarily mean the insurance company has any intention of paying or making the process easy.
There are deadlines and job continuation issues which must be successfully dealt with during the application phase. These are delicate issues. In fact, there have been claims handled by this law office in which the insurance company attempted to use the claimant’s continued efforts to work as evidence that the claimant was not disabled!