D.C. Maryland and Virginia medical malpractice, accidents and work injuries questions answered by D.C. injury attorneys.
Here are some of the questions people have when they first contact us about D.C., Maryland and Virginia medical malpractice, serious car accidents or workers compensation.
We try to provide as much information as we can based on our experience as medical malpractice lawyers in D.C., Maryland and Virginia and based on representing many hundreds of people who have been injured in accidents or at work in D.C., Maryland and Virginia.
Here are the basics:
Patients permanently injured by medical malpractice, or the families of patients killed because of medical negligence, when a hospital, HMO or healthcare corporation doesn't follow basic patient safety rules deserve justice - resources to help with the harms and losses due to the injuries or death of their loved one.
Drivers who don't follow the rules of the road, driving recklessly, driving drunk, speeding, and texting should be accountable for the harm they cause when their actions cause a car accident or wreck.
Workers hurt on the job deserve workers compensation benefits for lost wages, medical treatment and permanent injuries. If a worker is killed on the job, his family deserves workers compensation death benefits - to at least help with the financial loss of a loved one.
But since every person is unique, if you have questions or need information about an injury or death in your family, please contact us to talk it through. We'll talk to you, schedule a free initial meeting and give you all the information we can.
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What's the "Administrative Record" in my Long-Term Disability Claim with Guardian?
Your ERISA long term disability appeal depends on the administrative record in your case.
But what the heck is the administrative record? Where and how do I get it? What do I do with it?
If you've received a denial letter from your long term disability insurance company, indicating your benefits have been denied, or if you've been receiving long term disability benefits, that they have terminated or will end, your next step is to appeal that denial to the insurance company.
Here's some information on how to get ready to file your long term disability appeal.
That's the first step that you have to take to restore your benefits - and it's a big one. Your appeal is not just a letter to the insurance company saying that you disagree, or your most recent doctor's note saying you can't work. It's not a form you fill out.
Appealing your long term disability denial is a lot more than that - and here's why: your appeal, everything you put into it, will be the administrative record in your case if you have to file a federal lawsuit (ERISA is federal law so any lawsuit will have to be filed in federal court). That seems like we're getting ahead of ourselves, but the other critical piece of information is that the federal judge who decides the case will decide it on the administrative record.
Here are some tips on filing your long term disability appeal.
Sounds like we're going in circles a bit here, doesn't it?
First, you have to appeal the denial of benefits to the insurance company that just denied your benefits.
Then, if the same insurance company that just denied your benefits doesn't grant your appeal and reinstate your benefits, you have to sue them in federal court.
And the judge deciding the case will only review the administrative record (the appeal you provided to the insurance company and the information they reviewed to make their decision) and you don't get to testify about how you can't work, offer new evidence, or fix mistakes in your appeal.
Most people don't realize it, but you or your ERISA long term disability lawyer (especially if that's us) will spend a lot of time analyzing your entire claim file and then producing evidence that will help your appeal - working with medical experts and consultants, vocational experts, conducting interviews, recommending testing - all of it designed to give the insurance company (and later a federal judge) the real picture of the limitations and disability caused by your medical condition.
This starts with analyzing your long term disability insurance policy and the provisions that define disability. It really requires an in depth analysis of what the insurance company considered, why they denied your benefits and then what additional evidence would lead to the reversal of that decision.
If you're holding a denial letter, there is a lot of work to do. And under ERISA, you only have 180 days to file that appeal and create that administrative record.
So call us today at (202) 393 - 3320 so we can review your denial letter and see what we can do to put you in the best position to help get your long term disability benefits reinstated.
Have You Seen This Version of Lunch Atop a Skyscraper?
There’s a cool mural on the corner of 19th and Pennsylvania, I don’t think I had ever seen the “Lunch Atop a Skyscraper,” photograph. If I did, it was a long time ago and I didn’t remember anything about it.
I love history, and I was immediately rewarded for my quick Google search with lots of information about “Lunch Atop a Skyscraper.” As it turns out, these men were building out the Rockefeller Center complex in the 30s and the photograph portrays them having lunch more than 800 feet in the air above the City of New York.
Or so it would seem.
There is a dispute surrounding the actual circumstances, but it seems widely accepted that “Lunch Atop a Skyscraper” was a staged photography event designed to promote the new Rockefeller Center. Images of photographers up there, also taking crazy risks, seem to support this theory.
It has also been said that the men on the beam (with no fall protection, mind you- fall protection wasn’t a thing back then) were actually just a few feet above with a landing that was just below the frame of the photograph.
I’m rather anxious to believe that wasn’t the case.
To me, the men in this picture represent a generation of men who weren’t afraid to get their hands dirty. Who weren’t afraid to do the heavy-duty work. I like to wax nostalgic about a time when the people who worked the hardest got the jobs. Because, history says there weren’t that many to go around.
I would love to believe that they were a group of men unafraid and unaffected, sitting atop that beam, 840 feet in the air. Having lunch. Drinking liquor at noon. Smoking cigarettes. There were many immigrants but no politics. Just men, getting the job done.
In the individualized world we are now living in, it’s reassuring to reference a time when people just got the job done for the purpose of getting the job done. And had a little fun scaring people with their death-defying antics along the way.
But this mural depicting the famous photograph really caught my attention. Only about 500 feet from our office, I had barely noticed it when it appeared a few months ago, seemingly out of nowhere. At the time I had thought to myself “oh, that’s a nice yellow painting” but didn’t crane my neck to see that it was 8 women on a narrow metal beam, in hues of red, yellow, blue, and orange.
So today, I climbed atop the concrete wall and looked at it – really looked at it.
The first thing I noticed about the mural is that the women were all oriented toward one another, which I think is a heartwarming way to portray women in the workplace. As opposed to the original photograph where the men are mostly oriented parallel to one another, these women are clearly engaged, talking, touching a shoulder. They are dressed in different professional and trade wear and they are different ethnicities. Connected. On the same team.
The artist (find out who it is) did a really good job of portraying modern women in the workplace, who can do or be anything, without making any overtly political statements or sending any strident messages.
It made me feel proud to be a woman in the workplace – certainly in a different time and place then the “Lunch atop a skyscraper” men, and serving a different purpose. Yet still American. Still New York City. Or Washington, DC. Still getting the job done and taking pride in getting the job done.
Come check it out and let me know what you think!
How Do I Talk to My Doctor About Long Term Disability?
Your treating physician, or any doctor who has treated you for the injury or illness that caused your disability, is critical to a successful ERISA long term disability claim. But how and when do you get your doctor involved?
First - you have to read the disability insurance policy (this is the answer to a lot of long term disability claim questions...) to determine exactly how it defines disability. Chances are, your doctor has a different definition of disability or thinks of the term "disability" differently.
Does disability mean you can't do any work at all? Does it mean you can't do critical functions of your job? Does it mean you can't do the essential functions of your job? How long does it have to last? Is there a medical condition that may be excluded?
We talk to a lot of physicians and experts for our clients, and most treating physicians do want to help their patients.
But they don't know the answers to these types of questions. And without knowing that, they can actually hurt your case, even though you are legitimately disabled and can't work due to a serious injury or medical condition.
There are several things to keep in mind when talking to your doctor about your long term disability claim:
1. Doctors are busy - really busy. You may need to request and pay for extra time to see your doctor and discuss your condition because a routine visit may not give you enough time.
2. You need to give your doctor all of the important information (obviously this includes telling him the complete truth about your condition and limitations you have, but it's more than that). This may be reports of other doctors you've seen, Functional Capacity Evaluations, testing results, physical therapy evaluations. You can't assume that your doctor has seen these records or has all of this information.
3. Your doctor may need your job description - you can't assume he or she knows all of the physical aspects of what you do at work. Here's an example: Are you a security guard? Does that mean you sit at a fancy D.C. office lobby watching people swipe their fobs when they come back from lunch? Or does it mean you are a security guard at a site where you break up fights, apprehend suspects, detain people and carry a firearm? Don't let your doctor guess about this.
What if you have several medical conditions that prevent you from working, and you also have a condition that is excluded by your policy?
It's hard to talk to doctors and medical specialists - they're busy and would rather be practicing medicine than filling out forms and writing reports. But it's important to get your doctor all of the information, so it's in your medical records and you can use it in your long term disability claim.
Have you received a letter saying your long term disability benefits were denied or terminated? We'll review that at no charge and give you our thoughts on what you need to do next - but get it to us quickly, because there are harsh, unforgiving time frames to file an ERISA long term disability appeal.
Just call (202) 393 - 3320 to arrange to get it to us.
Can You Work And Get Long Term Disability Benefits in D.C.?
First, remember that, most likely your long term disability policy and claim are governed by ERISA, a federal law. And if so, your insurance company has a lot of discretion in this complicated process - including how and why they deny your claim.
But with the right guidance, advice and arguments, you can file a well researched, thorough appeal with persuasive medical evidence, vocational evidence, and the right arguments to get that decision reversed - I am not talking about a letter that says "I hereby appeal your decision" or a form you fill out. I'm talking about the entire start to finish appeal process we customize for every person we work with.
Now, any work can end your disability claim, so you have to be careful. And disability benefit insurance companies will use any kind of work or work-related activity as a basis for denying or terminating your long-term disability benefits - including volunteer work, helping someone else with a business, or any kind of business type activity.
And this sucks because even though you're not fully recovered from your serious injuries or illness and can't go back to working full time, you want to do something.
So if you are getting long term disability benefits and are thinking about going back to work, you should take 3 important steps: 1) review and analyze your long term disability insurance policy - the whole policy, not just a summary or the terms and conditions, etc., 2) make sure your doctor supports this, and 3) don't hide this from the insurance company.
Analyzing Your Long Term Disability Insurance Policy
There are two important distinctions of the periods of time that apply in most long term disability policies, governed by the definitions (under your policy - not dictionary definitions) and these are called “own occupation” and “any occupation”. For the “own occupation” period, that means you qualify for disability benefits under the policy if your injuries or illness prevents you from performing the primary duties of your own job, and usually this lasts for 24 months, but review your policy to make sure. The "any occupation" period means that you cannot do any work because of your injuries or illness - in any field, not just your own.
Proving you cannot work in any occupation usually requires a lot of work to formulate the medical, vocational and other specialty evidence you need to support this and is a critical part of the appeal.
Here are a few other related terms that may be in your policy that you will need to understand:
How does the policy define Total Disability and Partial Disability - what does each term mean?
How does the policy define and deal with what are sometimes called "other Income” offsets, for example, social security disability or workers comp benefits, which reduce your disability benefits if you get these?
Does your policy have requirements or Incentives to work or participate in vocational rehabilitation or re-training programs?
Talking with Your Doctor About Your Activities and What You Can Physically Do After an Injury or Illness
When you feel like you are ready to try to return to work, your doctor should be involved in your decision. It's important that you meet with your doctor and he or she understand the physical requirements of your work and examine you before you try to go back to work.
Your doctor should be able to document any restrictions and limitations you have from the injuries or illness, including how much you can lift or carry, how long you can stand, how long you can sit, and how long you can work overall during a day or week. Have your doctor write a report on note in your chart that details all of the restrictions, limitations, time limits, etc. that apply and then release you for a light duty or trial to return to work to see if you can do it.
You want this because you can't know going in to it whether you can return to work, full time in the same capacity - you may or may not be able to do it. If the doctor just says you can work, with nothing more, it's going to be harder to prove you can't work if you try to go back but can't consistently do the job.
Document Everything with the Insurance Company
Let your disability insurance company know you are going to attempt a trial of going back to work and give them the medical support for the modified duty, restrictions, limits on the amount of time you can work, etc. that you and your doctor formulated.
Once you're earning any income, of course you want to report this and the insurance company should reduce (offset) your long term disability benefits to account for the money you are making now.
And follow up with your doctor - if there are things that you cannot do at work because of your injuries or illness, if you can't work as long, if your job duties have changed and are more physical than you expected - those are all examples of wat you want to pay attention to and document.
And if you've received a denial letter, call us at (202) 393 - 3320. We'll review that for you (free of charge) and give you our thoughts on your next steps. And remember, the appeal you file to that denial letter is absolutely critical to your ERISA long term disability claim - it is probably the only evidence a federal judge will use to decide your case if you have to file a lawsuit, and you only get one shot at it.
If I'm denied short term disability can I still get long term disability?
That is a great question - and the answer is yes.
Short term disability benefits are different than long term disability insurance policies, so although you would think one automatically affects the other, it doesn't usually work that way.
Even if the short term disability is denied, as long as you were covered under the long term policy, you can apply for and ultimately receive long term disability benefits.
This is the short answer, of course. As with any long term disability claim under the federal law called ERISA, there are a number of steps you need to take to make sure you receive the benefits you deserve if you can't work due to a serious injury or illness.
Make sure you request and analyze the long term disability insurance policy from your employer (or the insurance company directly if you have a private policy you purchased). The terms and definitions in that policy will govern a lot of your actions going forward to make sure you qualify - and they could be different than the short term policy provides.
The key is usually that you have been disabled (as defined by the long term disability policy) during the time period covered by short term disability. Usually this means you cannot work in your own occupation due to injury or illness, or sometimes that you cannot perform the "essential duties" of your job for a certain time period. So as long as you were disabled as defined by the policy during the time you applied for short term disability, a denial of short term disability benefits won't affect your long term disability claim. And the disability insurance company should have a different set of employees who review the long term disability claims as well.
Yes - it is the insurance company - Cigna, Reliance, Guardian, Unum, etc. - that both reviews and decides your claim and pays the benefits... a built in conflict of interest if there ever was one.
And if your claim is denied and you get a denial letter indicating why it was denied (and if it is an ERISA policy it should say you have 180 days to appeal), guess who decides that appeal? The disability insurance company. If your appeal is denied, you can file a lawsuit in federal court, but in almost every case, the federal judge will be deciding the case based on the record - which is your appeal. There is a whole process for a long term disability appeal.
So your appeal is not just a form or a letter saying you disagree and are appealing - it needs to be compiled, analyzed and written as with a federal judge in mind, advancing all of the arguments and adding all of the evidence (not just a letter from your doctor saying you are disabled) you have or can generate - expert reports and evaluations, statements, interviews, etc. that support your claim.
You don't get a second chance on that, so get the help you need early in the process.
If you received a denial letter, call us at (202) 393 - 3320 so we can arrange to review it for you, for free, no obligation.
What is Essential Duty Under Your Long Term Disability Policy?
Make sure the insurance company is using the right definition of disability.
You'd be surprised, but this comes up a lot. When you bought your insurance long term disability policy, or when your company did and provided coverage to you as an employee, they were basically paying for a specific definition of disability. The term “disability,” or “disabled,” is specifically, and carefully, defined in your insurance policy (by the insurance company). So how it is defined is critically important - and governs just about every aspect of your claim.
Sometimes the insurance company will terminate or deny benefits after reviewing the claim using a different definition of disability
There is a typical clause, sometimes called the "essential duty" cause that defines "Disability" like this: You are prevented from performing one or more of the Essential Duties of: 1) Your Occupation during the Elimination Period…”
In an ERISA long term disability claim, that work, that means you are disabled (and should get benefits) if you can prove you can't perform one of your "essential duties" due to injury or illness, sometimes this is also tied to the amount of time you can work, so an “essential duty” may include the ability to work full time, or 40 hours per week.
If you received a denial letter from the insurance company, you have to review it carefully (or have us review it for you). One of the first things to look for is the proper definition of disability. So, in this example, if the disability insurance company denial letter indicated your long term disability benefits were being denied because you need to prove "you must be unable to perform the duties of your occupation” you might not even notice the different definition they used to deny benefits.
Here's is why using the wrong, even slightly different definition changed the case. Under that definition, you have to be unable to do each and every job duty to get benefits. Under the terms of your insurance policy, however, you would be entitled to benefits if your injury or illness prevented you from doing just one job duty. As you can see, using the wrong definition allows the insurance company to say you aren't disabled.
Too many people with legitimate injuries and illnesses fall for this trick. You absolutely have to read your insurance policy or contract and make sure the denial letter terminating your benefits cites the correct terms, conditions and definitions in your policy. Above all else, don’t take the insurance company's word for it.
Whether the insurance company makes an honest mistake, doesn't know, or is deliberately trying to screw you, it doesn't matter - the result (a denial of benefits you deserve when you can't work) is the same.
So if you’ve received a denial letter, call us at (202) 393 - 3320 and let us help.
Can I Apply for Long-Term Disability Benefits Even Though My Short Term Disability was Denied?
There is a difference between long term and short term disability.
Let's face it, nearly every aspect of ERISA Disability claims is geared to favor the disability insurance companies and difficult or confusing for the person with the serious injury or illness who is making the claim. Even many judges, lawyers and insurance people find this area of the law confusing. We try to cut through the confusion and help you understand the process of your disability claim and the law and what to expect.
When someone has an injury or illness and can't work, they often apply for Short-Term Disability. If they are denied these benefits, many people assume they can’t file for Long-Term Disability, or that the insurance company has denied that too. It seems to make sense, but that's not right. Here's why:
Why Long-Term Disability Claims Are Really Denied
Your disability claim is governed by the language of your specific disability policy, not whether you can work, or your diagnosis or injury, or whether you are disabled. That's why if two people with the same job, injury or illness, and medical history who have different Long-Term Disability policies, one can be approved for benefits and the other denied.
There are no guarantees when it comes to ERISA long term disability. All insurance companies operate for profit, and if there is a way they can deny your claim, and avoid paying you disability benefits, they will do it.
Your Short-Term Disability policy is no different in this regard. Your claim is approved or denied based on the language in the insurance policy.
You Can Be Denied Short-Term Disability But Still Approved for Long-Term Disability
Your Short-Term Disability policy is a different policy than your Long-Term Disability policy. Sometimes, they are two separate policies written by the same insurance company, so it can be confusing, but remember, it's the policy language that controls.
So if your Short-Term Disability Benefits Have Been Denied, can you file for Long Term Disability benefits?
Yes - a denial of short term disability benefits doesn't prevent you from applying for long term disability benefits.
Since they are two separate insurance policies, they each have their own definitions, requirements and rules. Unless the terms of your Long-Term Disability policy specifically prevent you you from filing a claim based on the determination of your claim for Short-Term Disability, you can file for Long-Term Disability benefits. But make sure to analyze the policy language an terms for the meaning of the “elimination period.” You will probably need to prove you were continuously disabled during the elimination period in order to be eligible for Long Term Disability benefits , but that applies whether you were receiving short term disability benefits or not.
Plus, being approved for Long-Term Disability benefits may help your Short-Term Disability appeal. When appealing the decision of your Short-Term Disability benefits, your attorney can show that you have already been approved for Long-Term Disability benefits and use that to support your Short-Term Disability claim.
What if both Your Short Term and Long Term Disability Benefits Claims Were Denied?
If you have a serious illness or injury and can't work, and your doctor indicates you can't return to work, but your claims for both short term and long term disability have been denied, you should contact a lawyer handling ERISA disability claims to determine how best to appeal, why you were denied and the evidence you will need to try to convince the insurance company that you are disabled under the policy.
Disabilty benefits law is complicated, especially when you're dealing with the effects of a serious injury or illness. So call us at (202) 393 - 3320 with your questions and we can help you take the next step.
What do I need to do to get ready to file for Long Term Disability?
What to do before filing for long term disability.
First and foremost, get a complete copy of your medical records from your physicians. Some doctor's offices will give you only the physician notes or reports, some will charge you or have some copy service charge you for this, some staff members don't want to deal with it. But whatever the situation, be assertive in getting everything in your medical chart - office notes, labs, orders, prescriptions, referrals, etc.
You need to see these before the disability insurance company does, and you have to know what your doctors are saying about your condition or injury and your ability to work before you file for long term disability benefits.
You're injury or condition is legitimate - you're not trying to hide anything. But remember, the insurance company is going to do everything they can to deny or stop your disability benefits, construe everything that isn't 100% clear in their favor. Here's just a few reasons why you need to review your medical records first:
There is a mistake in the records (this happens frequently, and with electronic medical records and auto fill on the computer, the mistake gets automatically repeated in every office visit). Examples could be what your job is, how long you've had the injury or condition, what caused it, what your limitations really are.
Your doctor may not know what "disability" really means under your long term disability insurance policy - in other words as it is defined in your specific policy - not the common, dictionary or medical definition.
The records aren't complete - there are visits, labs, tests, etc. that are not in your medical chart.
Your doctor isn't a specialist or doesn't have specific expertise with your specific injury or condition and some of his notes could be misinterpreted by the insurance company. It's not that he doesn't understand your condition and that you can't work, but that his notes are vague, general or not very specific.
Keep in mind that none of this really matters as far as your medical treatment goes - and that is what your doctor is focused on. Many doctors are squeezed by health insurance reimbursements and view documentation as one more thing they have to do - but it's critical for your long term disability claim. Obviously, you want a copy of your records so you can identify if you have any of these issues before you file your claim, and so you can take steps to correct them by talking to the doctor, getting a follow up exam, a second opinion, etc.
In every case, the disability insurance company will review these records closely, looking for everything they can (any mistakes, inconsistencies, omissions, etc.) they can use to deny benefits.
The insurance company will have their own medical consultants and experts review your records - and you can bet they are trained to look for every inconsistency, mistake, anything that is vague or doesn't specifically describe your injury, condition and inability to work.
Your medical condition and inability to work is real and legitimate, so make sure your medical records are good enough to satisfy the insurance company under the policy and qualify for benefits.
If you don't review your medical records and just send them to the insurance company, you may set yourself up for a denial of your claim - that's what your long term disability insurance company is hoping for.
If you want more information on how to prepare for your ERISA long term disability claim, or want to talk it through, just call us at (202) 393 - 3320.
Can I get Some Info on Making a Claim Under My Long Term Disability Policy?
Long Term Disability Insurance Denials
There are a number of reasons the disability insurance company can deny your legitimate claim for benefits, even if you can't work because of an injury or medical condition. Unfortunately, most people don't recognize how important the appeal is, or, usually because they are so seriously injured or ill that it will be easy to convince the insurance company that they made a mistake, or they don't know how to respond (how would they, having never been in this situation before?)
Here's some common misconceptions about ERISA long term disability:
All it takes is reading the forms, telling the insurance company about your injury or illness and sending in a doctor's note.
If you just complete the 2 page form from the insurance company, you will get your benefits.
If you have been awarded Social Security disability benefits your long term disability benefits will automatically be approved by the insurance company.
If your doctor writes a note to the insurance company or your medical records indicate you are disabled you will be awarded disability benefits.
If your company or boss tells the insurance company that you can't work because of your illness or injury, you will be awarded benefits.
Here are some of the realities of ERISA long term disability:
Insurance companies are for profit corporations, with a duty to maximize profits for shareholders. One of the ways they do this is by denying claims like yours (and let's face it, they know a certain percentage of cases will go no further, and some people will just accept their denial).
The forms insurance companies send you are really to help them deny claims. By having you answer questions about things you can do that have no relationship to your work, injury or illness, they can say you're not disabled (or don't fit the policy definition).
If you're awarded Social Security disability, your insurance company can still argue that they do not need to follow that determination, even though it is a federal program and the standards for awarding social security disability are higher than most long term disability policies.
There is nothing that requires the insurance company to follow your doctor’s opinions and recommendations (even though that doctor knows your condition and limitations, has probably treated you over months or years and is in the best position to address this). Instead, they will probably hire an insurance medical examiner review your records, and somehow say you can work.
Just like with your physician, the insurance company is not required to follow your company's recommendation. Instead, they will ignore or minimize evidence from co-workers, bosses and people who are in the best position to observe your limitations, and especially the before and after picture.
What Can Do To Combat the Disability Insurance Company?
Here are some general tips to keep in mind as you go through the process:
Get prepared and organized. If you have a condition that is getting worse, get everything in order before you can't work and before you submit a claim.
Do not tell a lie in any part of the claims process. But with any forms you complete, send in all of your supporting documents as well - the forms themselves just aren't enough.
Get an independent lawyer to help with social security when you file for social security disability - the disability insurance company may offer a big national firm to do this for you - but whose interests do you think that firm and lawyer have at heart?
They don't teach ERISA disability claims in medical school. Your doctor may be an awesome physician but doesn't know what will help or hurt your specific disability benefit claim - above all, make sure he or she (or any physician you see) uses the definition of disability contained in the insurance policy. Sometimes the doctor may have a definition of disability in his or her own mind or practice that is different.
Get letters from bosses, co-workers, friends and families who can accurately describe your condition and how it prevents you from working (especially the before and after picture) and include them in your appeal, even though the insurance company may ignore or discount these. If nothing else, if you're appeal is denied and you have to file a lawsuit in federal court, you can argue their denial was unreasonable because they didn't consider this evidence.
And if your long term disability claim was denied, call us at (202) 393 - 3320 for help. We'll review the denial letter for free and tell you what we think. Just remember, under ERISA, you only have 180 days to file your appeal, so don't wait!