Brooke M. Birkey, Director of Client Services
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Director of Client Services


Get Caught up on Mark's Story: Part I & Part II


Mark submitted his claim, but it was denied.

He read the denial letter, it was several pages long, and was informed that he had a right to appeal the denial within 180 days of getting the letter. From there, he didn’t know where to go, so like most people, he asked his family, friends and co-workers.  His HR person at his work didn't know any more about the appeal process than he did.   

Mark thought that because he was claiming disability due to legitimate injuries, remember, he had broken several bones, underwent surgery and his doctors said he couldn't go back to his usual job, that there was no need for a lawyer. Unfortunately for Mark, he couldn’t have been more wrong.

Mark didn't really understand the terms and definitions of the disability policy - it was the first one he'd ever read.  He didn't understand that the insurance policy had a discretionary clause and he would have to focus his appeal on whether the insurance company's decision was "reasonable" no on whether his injuries were real.

Good information on long term disability claims in DC is hard to find, and Mark didn't follow our 6 tips on preparing an appeal after your claim is denied.  He didn't know he could request his complete claim file from the insurance company and that was the first thing he should do.  

Mark just filled out the forms and sent them to his doctors' offices as well.  But he never wrote to the doctors or met with them to explain the definition of disability in the policy.  While many doctors want to help, they are busy and don't have time to consider that every long term disability policy is a little different, so they go with their own, "common sense" definitions.

Mark also wasn't sure of the exact dates for many items so he estimated as best he could. After all, there had been a lot going on so how could anyone expect him to remember so many exact dates? When compared to the records that were kept by the hospital and his physical therapist, it was obvious that the dates Marks was claiming weren’t consistent with what took place. A couple of days here and a few days there added up to major differences and it made Mark seem like he couldn’t “keep his story straight” when he was questioned further.

Also working against Mark was the fact that he was unable to provide a key part of his record that he requested from the hospital that took his x-rays. He initially asked for the record of the x-rays and what he received the reports, but not the images themselves.  He needed those to show to an expert orthopedic surgeon who could explain the weakness and lack of motion he had after surgery.  By the time he got the actual images, there wasn't enough time to get this done, he couldn't get an appointment to do this in time (remember, doctors are busy).  

Nobody knew his job better than Mark, but he never took the time to submit a detailed job analysis, or get a Functional Capacity Evaluation to show he could not perform the critical duties of the job because of his injury (and he wasn't sure what kind of job description the insurance company was using, he just figured they had it...)

Mark ultimately ended up having his appeal denied.  He figured he would have to sue the insurance company in D.C. to get his disability benefits (he was right about that).  But he soon found out that he didn't have much of a case - because the federal judge who would decide the ERISA disability lawsuit would decide it based on the appeal Mark did - the administrative record.  So Mark wouldn't be able to fix the mistakes he made or add to the appeal. 

This is a sad, but thankfully fictional tale.  But we tell this story because there are a lot of Marks out there...  

Don’t let Mark’s story be your story. If you’ve suffered and injury or accident and have an ERISA Long Term Insurance Disability case, reach out to Donahoe Kearney today.

Mark is a composite fictional character we created in order to help people understand the difficulty that can be involved in an ERISA long term disability insurance claim, and how you can get the help you need to be successful if your claim is denied.


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