Disability Denial Attorneys Blog

Long-Term Disability - Social Security Disability - Veterans' Disability

What are Deferential Standards and How Do They Affect Your Long Term Disability Insurance Claim?

Published on November 19, 2014 by

No one wants to have their claim denied, but when it happens you have to be prepared to fight to get the benefits that you know you deserve. Part of being prepared is knowing what standard of review you are likely to face.

Recently, we talked about how you can know whether you’ll face the more favorable de novo review or a deferential review that gives the advantage to your insurer. But there’s a question that may be even more important: if it is determined that the court in your case will be using a deferential standard of review, you need to know if that standard will be abuse of discretion or arbitrary and capricious.

The Vast Gulf between Abuse of Discretion and Arbitrary and Capricious Reviews

Why is it so important to know which one you’re going to be up against?

The first reason is so that you and your legal counsel can be proactive in putting together evidence designed to prove one or the other. Any good lawyer will tell you that the more time they have to dig around and gather the information they need, the better chance there is of winning the case.

But there’s another reason as well: studies have shown that which deferential standard a claimant faces matters – a lot. Those who go up against an arbitrary and capricious standard only win their suit 28% of the time. In contrast, claimants with abuse of discretion as their standard of review win 68% of cases!

Unfortunately, you can’t choose which deferential standard will be used. It’s something decided at the state level. More than half of all states, including California and Texas, use abuse of discretion. 13 use the arbitrary and capricious standard. And the remaining nine go back and forth, sometimes using one and sometimes the other.

Discovering that your state uses the arbitrary and capricious standard isn’t necessarily a reason to give up hope, though. If you know that this is something you may face, you should contact an experienced disability attorney as soon as possible. Not only will this help them in building the best case possible for you, but they may be able to use their legal knowledge to show that the insurer should not be given a deferential standard of review at all.

Want to arm yourself with as much knowledge on workers disability as possible? Download our free disability plan eBook and check back weekly for more blogs that will help you better understand your claim and win the benefits that you deserve!

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What is a Long Term Disability Insurance De Novo or Deferential Review?

Published on November 14, 2014 by

Recently, we went over the various kinds of standards of review you can expect for your disability claim if you are denied and have to fight the decision in court. There’s what is known as de novo review, where the court agrees to act as if the insurance company’s original decision never occurred and approach the disability evidence without bias. And then there’s deferential review, where the court gives a varying amount of weight to the insurer’s decision depending on whether their standard of review is arbitrary and capricious or abuse of discretion.

Generally speaking, both standards put the claimant at a disadvantage because the court is essentially assuming that the insurer is right until proven wrong. Unfortunately, claimants can’t just choose the standard of review that they want to use.

How is the Standard of Review Decided?

Current law is both straightforward and a bit complicated on this issue. The applicable Supreme Court decision most often used says that all challenges to claims denials should be reviewed under a de novo standard – unless the actual plan language states that “the administrator or fiduciary discretionary authority” is allowed to determine eligibility or interpret the plan.

Basically, some plans have clauses that offer an “out” to insurers by saying that someone can decide that you don’t really get the benefits outlined in your policy for whatever specific reason they believe applies.

But we say this is a bit complicated because at least 25 states have attempted to restrict or even ban discretionary authority in ERISA plans and there are a number of legal battles going on right now where a major sticking point is whether or not discretionary authority can be exercised.

So, how can you know whether you’ll be facing a more claimant-friendly de novo review or one that’s deferential? You can try to read through your plan and applicable state laws to learn what’s going on, but the best way to make sure you’re getting the complete, accurate picture is to talk with an experienced law firm that focuses on long term disability insurance claims. Learn more about disability plans in general in our free eBook. Be sure to check back weekly for more blogs that offer information on how you can win your long term disability insurance claim.

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How Can Obesity Impact Your Social Security Disability Claim?

Published on November 12, 2014 by

With so many people in our country classified as obese or overweight, it’s not uncommon for questions to arise about how obesity can affect a claim for disability benefits. Since obesity is a medical condition recognized by Social Security, can you argue that you’re disabled if you’re obese? How does it impact a claim based on a separate condition where the individual also happens to suffer from obesity?

Is Obesity a Disability?

While the SSA still recognizes obesity and includes a definition of the disease, it was removed as an actual impairment in 1999. This means that, though it’s not impossible for someone to get benefits solely due to their obesity, it’s incredibly rare. In order to qualify for benefits, an obese person has to show that their weight is impacting them just as negatively as one of the currently listed impairments. For example, someone who is so obese that they can’t walk could qualify because their issue “medically equals” listing 1.03, where someone is unable to walk for a year because they had to have reconstructive surgery on a weight-bearing joint.

But while obesity by itself likely won’t aid you in getting Social Security, it can end up pushing another impairment to qualify by making that issue worse. This is especially true with musculoskeletal problems.

Musculoskeletal Issues Compounded by Obesity

It makes complete sense when you think about it. Musculoskeletal issues have to do with how our joints, bones, and muscles hold up under duress and pressure. Excessive weight means more duress and more pressure, so any problems caused by a musculoskeletal impairment will be worse for people who are also obese.

This is important to note because while someone may not qualify for benefits based on the issues they suffer from obesity or a musculoskeletal disorder by itself, the combined effects of both of these impairments can lift them up to the level where they qualify.

Adjudicators are required to consider any cumulative or additional issues that may be present as a result of a person’s obesity, but this doesn’t always happen when the sole impairment listed is a single musculoskeletal disorder. Smart disability attorneys understand that they can often help their clients’ cases by listing a combination of impairments rather than simply trying to get benefits based on a single issue. Learn more about the claims process by reading our Social Security Disability eBook for free!

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What is the Standard of Review for Disability Insurance Claims?

Published on November 7, 2014 by

When someone has their long term disability insurance claim denied by their insurance company and decides to fight that decision, the court must use a specific set of criteria to determine whether or not the insurer made the right call. These criteria are called a “standard of review.” Depending on the parties involved and the specific situation, the court may decide to use a standard of review that includes a lot of deference toward the original decision that was made… or one that reviews the information as if that initial decision never occurred.

Insurance claims tend to fall under one of three types of standards: arbitrary and capricious, abuse of discretion, and de novo.

Arbitrary and capricious. This standard of review is very deferential to the original decision. The court will only overturn that decision if they find that it was made without properly considering the circumstances involved or based on unreasonable grounds – basically, that the people who denied your claim did so with no real basis for it.

Abuse of discretion. Sometimes insurance plans provide for “discretionary authority” when deciding whether or not to award benefits. In these types of plans, courts may use an abuse of discretion standard of review. Not as deferential as the arbitrary and capricious standard, this one simply requires the court to find that the decision was made based on an error.

De novo. The de novo standard of review is used in all insurance claims cases except those in which someone has been given discretionary authority. Under the de novo standard, the court pretends like the original decision never happened and that they are examining the information for the first time.

How do you know which standard of review your claim will fall under? Ask an experienced disability lawyer to read your plan closely and see what the language calls for. And learn more about the overall long term disability claims process by checking out our free eBook.

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