A Lawyer’s Guide to Long COVID and Long Term Disability Insurance Claims
Applying for short term or long term disability benefits can seem overwhelming at first. Here are some tips from Andrew Kantor, a disability insurance litigator who focuses on ME/CFS and other difficult to prove claims:
1. Obtain objective evidence. Explore tests that help to explain symptoms, such as 2-day CPET (cardiopulmonary exercise training), tilt-table testing, and neuropsychological testing. When getting a CPET, seek out practitioners who understand ME/CFS and use Workwell’s 2-day test-retest protocol to avoid misinterpretation of results. One day CPETs are not helpful in assessing disability.
2. Know your governmental benefits. You will be required to file for all other disability benefits to which you could be entitled. This includes benefits under the Family Medical Leave Act, as well as state disability benefits and Social Security (Federal) disability benefits. Note: Only five states offer disability benefits, and they last no longer than one year. As such, these programs provide a lifeline, but ultimately long-term programs, such as LTD or SSDI, are needed for those who remain chronically ill and too disabled to work.
3. Read your disability policy. Pay particular attention to the maximum benefits, benefit exclusions and limitations, as well as the definition of disability itself. Figure out if your policy is governed by ERISA – it will make a difference in many ways, including what type of lawyer to seek. For a bit of background, ERISA is the federal law that governs most of our benefits as they are provided by our employers.
4. Talk to a disability lawyer. Many attorneys specializing in this area offer free consultations and can help translate LTD policy language as it applies to individual cases.
5. Be honest about your condition. When preparing to make a claim, be direct with employers about accommodations needed, and ensure these efforts are documented. Being honest can also avoid “gotcha” moments by insurance companies who pay private investigators to spy on claimants. If you have better and worse days, be upfront about the variation you experience in your illness, but do not minimize the limit that “bad days” place on the ability to function.
6. See your doctor regularly. Seeing a doctor regularly – by any means – is important for documenting medical conditions. In addition to seeing a doctor regularly, it is equally important to mention how symptoms affect functionality. Without regular records, it becomes much harder to provide ongoing proof of disability.
7. Find a supportive doctor. Unsupportive doctors can refuse to refer patients to specialists and write strong support letters. Finding a doctor willing to listen and help get necessary medical testing can make a difference in a difficult case. If long-haulers suspect ME/CFS, they should see a physician who specializes in this disease.
8. Request medical records. It is always a good idea to occasionally request medical records to make sure that your doctor accurately represents your condition. If records are incomplete or express doubt, patients need to know this before appealing decisions. Similarly, keep a daily journal of symptoms and how they impact function.
9. Don’t give up. Insurance companies, especially those governed by ERISA, look for ways to reject applicants, including those who are clearly disabled. Insurers count on many people giving up without fighting (often successfully) for benefits. Please don’t be one of those people!
Additional resources:
Insurance Claims and Appeals Guidebook
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Andrew Kantor’s practice is focused primarily on helping individuals obtain wrongfully denied disability and life insurance benefits in both the ERISA and non-ERISA (bad faith) policies. Since beginning his career at Kantor & Kantor, Andrew has helped hundreds of clients secure wrongfully denied disability benefits, including his most recent victory in Renault v. UNUM wherein he convinced the Court that UNUM’s interpretation of its own disability policy to exclude all bonuses and commissions from Ms. Renault’s benefit calculation, despite having a commission-based sales position, was improper as a matter of law. Andrew has recently been named as a member of the Community Advisory Council at the Solve ME/CFS Initiative. Andrew also serves on the Board of The Elder Law and Disability Rights Center. In addition, his efforts have been recognized by Super Lawyers, being named a 2019 Rising Star in Southern California.
Experiences like these have helped position Andrew as one of the country’s leading experts on fighting disability denials for individuals with chronic-fatigue related illnesses, including ME/CFS and Lyme disease.
