Is an undiagnosed broken neck that healed long ago considered a disability when the symptoms have appeared?

Steps needed to appeal a denial on a long-term disability insurance claim

• The accident On December 17, 2003, I suffered a neck and shoulder injury. This is in California. What happened I was having lunch at a cafe. Art hung on the walls. Each art piece was mounted in a wooden box. The art piece was about 2' wide and 3' in heighth. I was sitting on a couch attached to the wall and directly below the art. The art fell off the wall and hit me square on the neck. I was pinned beneath it. The injuries and the doctors I am being treated by an orthopedic surgeon, a physiatrist (i.e. a doctor who treats neck injuries), a chiropractor and physical therapy two to three times a week. All of them tell me that everything in the neck and shoulder was injured -- the muscles, tendons, ligaments, stiff joints -- all as a result of the accident. It appears that no disks were broken or cracked. For weeks, I had to wear a soft collar as I could not hold my head up. I was in the most horrible pain. Medications included vicodin, norflex (a mucle relaxant) and ibuprofen) all of which could be taken simultaneously for the pain. All of the above listed medical personnel tell me it will take a solid year to recover. After one year "it's as good as it gets". Employment and ability to work I have been working about four hours a day. After four hours, I am exhausted and cannot hold my head up very well. I am a computer programmer so I sit at the computer and monitor typically 8, 10, even 12 hours a day. With the injury, there is no way I could do that. The exercise routine for physical therapy takes about an hour and can leave me exhausted. Short-term disability claim My employer used MetLife to process the short-term disability claim. For six months -- from December 11, 2003 through May 16, 2004 -- MetLife approved the short-term disability claim. Thus, my employer paid me some wages during that time as well the premiums for some insurance benefits. My chiropractor filled out the forms for the short-term claim. (He also filled out the forms for California State disabiility which was also approved.) Long-term disability claim I pay the premiums for the long-term disability insurance. My chiropractor completed the form and added his office notes (which are illegible). I prepared a package consisting of the form, my typed statement, two progress reports from the orthopedic surgeon, two progress reports from physical therapist, copies of the med prescriptions, and copies of award letters from my employer and California State. MetLife denied the claim. In part, they wrote: Based on the informatin received, there are no objective findings that indicate a functional impairment that would prevent you from performing your occupational duties. Physical therapy notes indicate pain decreased overall. There are no physical exam findings documented. I talked to the case manager on the phone. She was polite but terse. She did say that a nurse made the decision. She would only add that the reasons for the denial are in the letter. What exactly do they mean by "no objective findings" and "no physical exam findings"? What steps do I need to take to appeal the denial and win the appeal on the long-term disability insurance claim? I have six months. Would it help my appeal to have an attorney write a cover letter, or to even handle the whole thing? Can you cite some web sites that tell consumer what is needed in these kind of appeals? Thank you. Cynthia Diane

• Answer:

  The issues can be very complicated, and you probably need a very specialized lawyer. The key issue is whether or not your policy is governed by ERISA. If you got it through your employer or some other group, even if you paid the premium, it almost certainly is. If it was individually purchased, then it is probably not. The difference in litigation is huge. Because you mention having 180 days to appeal, that is a strong indicator that you have an ERISA-governed policy. ERISA preempts all state insurance laws and bringing suit in state courts, forcing you to sue in federal court only after you have been through the insurance company's appeals process. Furthermore, you generally are not allowed to add any evidence into the administrative record once you file suit. In most cases, the judge is required to apply a highly differential standard to the insurance company's decision, making it difficult to overturn unless you have added evidence into the record as part of the appeals process that the insurance company ignored. You need an attorney who is an expert in disability insurance and ERISA if you are subject to it, and they are rare because you usually cannot collect attorney's fees, and the law prevents the award of damages. As a result, some insurance companies can hide behind ERISA and engage in terrible behavior with no risk because at worst, the courts can only make them pay what they would have had to pay anyway. An individual policy makes life a little easier, but most insurance companies are extremely aggressive these days in denying claims. There are a million ways to screw up a claim, and many are very difficult to overcome after the fact. Other issues revolve around the definition of disability in the policy and how well your physicians have documented your disability with respect to how it impedes your ability to work. I highly recommend the following web site to you for general information: http://www.disabilityinsuranceforums.com. I suggest reading the General Questions and Disability Insurance Claims Advice forums in their entirety to educate yourself on what is going on. Obviously, these are worst-case scenarios, but they frequently occur, particularly with certain insurance companies. You can also post questions about your claim and receive answers from qualified experts and other claimants. This disability attorney, based in Virginia, has a number of interesting documents on his web site: "Disability Insurance Claim Denial" BenGlassLaw.com http://www.vamedmal.com/practice_areas/disability-insurance.cfm. While there is some overly dramatic material on the Internet about disability claims problems, most of it is valid and useful. I suggest you learn as much as possible about your insurance policy's provisions and, if applicable, ERISA, so that you can interview attorneys intelligently and make sure they know what they are talking about. You also want an attorney who will let you be highly involved in the litigation process. No attorney will ever know your claim as well as you do. Here are some links to specific threads on the Disability Insurance Forum that you may find particularly useful: "Appeal and Request Information - Erisa" Disability Insurance Forums (October 25, 2003) http://www.disabilityinsuranceforums.com/messageview.cfm?catid=4&threadid=1924&highlight_key=y&keyword1=ERISA "Qualities for good ERISA representation" Disability Insurance Forums (March 19, 2004) http://www.disabilityinsuranceforums.com/messageview.cfm?catid=4&threadid=2423&highlight_key=y&keyword1=ERISA "ERISA MetLife and CFIDS" Disability Insurance Forums (March 17, 2004) http://www.disabilityinsuranceforums.com/messageview.cfm?catid=6&threadid=2409&highlight_key=y&keyword1=ERISA There are plenty of court cases out there decided in favor of the claimant where insurers were chastised for ignoring self-reported symptoms. However, some newer disability insurance policies have language making claims based on self-reported symptoms more difficult. Understanding your policy's definition of disability is critical. Good luck pursuing your claim. From personal experience, I advise you to never communicate with any insurance company representative by telephone or in person. Your best bet is to always communicate by fax or certified mail/return receipt requested. Having a written record of what you say and they say is very important. They will deliberately distort your statements and try to trick you into saying things that could damage your claim. I certainly would not communicate with them further, even in writing, until you have consulted an attorney. Please request clarification if needed. Sincerely, Wonko