Nortel Networks Announces It Is Terminating Long Term Disability Payments to U.S. Employees

Nortel Networks, once a strong player in the telecommunications market with over 8000 employees, has announced that as part of its bankruptcy it will terminate Long Term Disability, retiree and other benefits to employees in the United States on August 31, 2010. The company also announced that it will terminate the employment of those employees receiving Long Term Disability benefits.

Unfortunately, ERISA - the Employee Retirement Income Security Act, the federal law that governs employee benefits - offers no protection for people who make Long Term Disability ('LTD') claims under an employer's self-funded LTD plan if the employer later goes bankrupt. Compared to an insured plan where an employer buys a group insurance policy to pay claims, self-funded ERISA plans are paid from a company's general funds. Although pensions have some limited protection under ERISA, other benefits like Long Term Disability plans typically do not survive bankruptcy.

If one can afford it, it is almost always better to supplement any company funded disability or life benefits with private insurance policies. Having a private policy gives piece of mind to an employee that they will still have disability or life insurance, even if their employer goes bankrupt.

Copyright (c) 2010 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

My doctor says I am limited to "Light Duty." Why was my disability claim denied?

To doctors, restricting you to "light duty" usually means that you need some kind of accommodation to perform your job. This can include a reduction in work hours, performing less physically or mentally demanding tasks, and having fewer duties.

However, when your doctor says you can do "light duty," the Social Security Administration and many insurance companies will assume that means you can perform "light work," which is not always the same thing.

In classifying the type of work that you can do, Social Security and most insurance companies rely on the definitions found in the Dictionary of Occupational Titles, a publication of the U.S. Department of Labor. Light work is defined as:

Light Work - exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.

For the most part, if you are able to do light work, you are also considered to have the ability to perform sedentary work as well. "Sedentary" is the term for jobs that are typically done in seated in a chair. These classifications encompass a wide range of jobs in the national economy at all education and skill levels.

In a Social Security claim, if you can perform the full range of light work, your claim will be denied unless you are:

• Older than 50 and are illiterate and unable to communicate in English with an unskilled work history
• Older than 55 with no transferable skills

In a disability insurance claim, the definition of disability depends on your policy, so it is important to know what that definition is. Depending on your job and the policy, being limited to "light duty" may still mean that the insurance company finds you to be disabled because you cannot perform your regular job. However, the insurance company could have a much stricter definition of disability and your claim could be denied.

Your doctor will put you in a much better position to be approved for disability benefits if he or she lists your specific restrictions or why you would only be able to perform light duty, including workplace accommodations needed, restrictions on the number of hours you can work, and physical and mental limitations.


Copyright (c) 2010 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

Disability Attorney John Tucker to Speak At American Association for Justice National Convention

Disability lawyer John Tucker of Tucker & Ludin will be a featured lecturer at the National Convention of the American Association for Justice in July 2010. Mr. Tucker will present a lecture on the interrelation between Social Security Disability benefits and Long Term Disability benefits at the Convention, which will be held in Vancouver, British Columbia, Canada.

Mr. Tucker is a frequent author and lecturer at the national and local level in the areas of disability benefits, disability law, and proving disability claims.

Copyright (c) 2010 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

Disability Benefits for Mental Health Conditions: How Your Doctor Can Help

In order to prove that you are disabled due to a mental health condition, Social Security and/or your insurance company will want information about how your condition prevents you from working. Your doctor can help by giving specific information about how your symptoms impact the following areas at work:

Concentration, persistence, and pace

• How long can you pay attention at one time?
• How long can you pay attention over the course of a day?
• Do you need breaks more than once every two hours?
  

Absenteeism due to your psychological problems

• How many days a month would you be expected to be absent from work?
• Would you need a flexible schedule?

Ability to sustain competitive employment, 8 hours a day, 40 hours per week

• Would you need extra breaks the more you work?
• Would your symptoms worsen over the course of a day or a week if you worked?
  

Ability to understand, remember, and carry out both simple and detailed instructions and work-like procedures

Ability to interact appropriately with the public, supervisors, and coworkers

• How do you react to criticism?
• Are you cooperative?
• How do you deal with authority figures?
• Do you communicate clearly with others?

Ability to respond to normal work stress

Ability to perform simple, routine tasks

• Do you need extra supervision to carry out your duties?
• Can you finish tasks without distraction?

Your doctor should indicate your level of functioning in these areas. Do you have an unlimited, limited, or very limited ability? Are you unable to function at all in these areas?

By providing Social Security or your insurance company with this information, you will help your disability claim by giving a complete picture of your ability to work.

Copyright (c) 2010 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

If I get disability benefits, can I take money out of my 401k without paying the 10% penalty?

If you get Social Security Disability or Long Term Disability (or some kinds of VA disability benefits), you may be able to avoid paying the 10% early withdrawal penalty if you take funds out of your 401k plan.

A lot of people who get disability benefits have to tap into their 401k plans to pay bills and take care of other expenses. When you do that, you usually will get a Form 1099-R for the distribution, and box 7 will usually be checked indicating it is a loan. You will have to pay the loan back at a reasonable interest rate, or you face paying a 10% early withdrawal penalty.

However, if you are disabled, you can avoid the 10% penalty. You prove disability by showing that you cannot perform substantial gainful activity because of your physical and mental conditions. This is very similar language to Social Security's disability standard. It is also the same language the government uses for a person to prove 100% disability based upon individual unemployability (often called a claim for 'TDIU') under the VA disability system. It probably is not the same language you will find in your Long Term Disability ('LTD') insurance policy or ERISA (group employer or union) plan. However, if LTD plan pays benefits based upon your inability to engage in any occupation and you have proven that, it is very similar.

Visit the IRS web site to learn more about early 401k withdrawals. Talk with your CPA about filing Form 5329 and entered code 03 on the form.

Copyright (c) 2010 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

DISABILITY BENEFIT TIP: Restrictions and Limitations

When you file for disability benefits through an insurance company or the Social Security Administration, it can be helpful to have your doctor complete a questionnaire that specifies what your restrictions and limitations are. You can create a questionnaire yourself that hits the key points that need to be addressed by your doctor. While every disease/condition is different and has its own expected difficulties, your doctors can address a few of the same things in every case. Specifically, you can ask your doctor to respond in writing to the following questions:

1. How often have you seen the patient? What was the first date seen?

2. What are the patient's diagnoses?

3. What is the patient's prognosis?

4. What are the clinical findings, laboratory and test results that show your patient's medical impairments?

5. Is your patient a malingerer?

6. What are your patient's symptoms?

7. If your patient has pain, characterize the nature, location, radiation, frequency, precipitating factors, and severity of your patient's pain.

8. Do emotional factors contribute to the severity of your patient's symptoms and functional limitations?

9. Are your patient’s impairments (physical impairments plus any emotional impairments) reasonably consistent with the symptoms and functional limitations described in this evaluation?

10. How often during a typical workday is your patient’s experience of pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks?

__ Never __ Rarely __ Occasionally __ Frequently __Constantly

For this and other questions on this form, “rarely” means 1% to 5% of an 8-hour working day; "occasionally" means 6% to 33% of an 8-hour working day; "frequently" means 34% to 66% of an 8-hour working day.

11. Identify the side effects of any medication that may have implications for working, e.g., dizziness, drowsiness, stomach upset, etc.

12. Have your patient's impairments lasted or can they be expected to last at least twelve months?

13. As a result of your patient's impairments, estimate your patient's functional limitations if your patient were placed in a competitive work situation:

a. How many city blocks can your patient walk without rest or severe pain?
b. How many hours and/or minutes can your patient sit at one time, e.g., before needing to get up, etc.?
c. How many hours and/or minutes can your patient stand at one time, e.g., before needing to get up, etc.?
d. Please indicate how long your patient can sit and stand/walk total in an 8- hour working day (with normal breaks):

Sit Stand/walk
__ __ less than 2 hours
__ __ about 2 hours
__ __ about 4 hours
__ __ at least 6 hours

e. Does your patient need to include periods of walking around during an 8-hour working day?

1. If yes, approximately how often must your patient walk?

2. How long must your patient walk each time?

f. Does your patient need a job that permits shifting positions at will from sitting, standing or walking?
g. Will your patient sometimes need to take unscheduled breaks during an 8-hour working day?
If yes, 1) how often do you think this will happen?
2) how long (on average) will your patient have to rest before returning to work?
h. With prolonged sitting, should your patient's leg(s) be elevated?
If yes, 1) how high should the leg(s) be elevated?
2) if your patient had a sedentary job, what percentage of time during an 8-hour
working day should the leg(s) be elevated?
i. While engaging in occasional standing/walking, must your patient use a cane or other assistive device?
j. How many pounds can your patient lift and carry in a competitive work situation?

Never Rarely Occasionally Frequently
Less than 10 lbs. __ __ __ __
10 lbs. __ __ __ __
20 lbs. __ __ __ __
50 lbs. __ __ __ __

k. How often can your patient perform the following activities?

Never Rarely Occasionally Frequently
Twist __ __ __ __
Stoop (bend) __ __ __ __
Crouch/ squat __ __ __ __
Climb ladders __ __ __ __
Climb stairs __ __ __ __

l. Does your patient have significant limitations with reaching, handling or fingering?
If yes, please indicate the percentage of time during an 8-hour working day that your patient can use hands/fingers/arms.
m. Are your patient’s impairments likely to produce “good days” and “bad days”?
If yes, please estimate, on the average, how many days per month your patient is likely to be absent from work as a result of the impairments or treatment:

__ Never __ About three days per month
__ About one day per month __ About four days per month
__ About two days per month __ More than four days per month

If there are certain symptoms that can be expected with your specific disease, you can add questions about that. For example, if you have Lupus and one of your symptoms is a butterfly rash on your face, you can add that to the questionnaire. If you are working with an attorney, your attorney can develope a questionnaire tailored to your disability.

REMEMBER: Simply stating that you have a disease does not necessarily indicate that you are disabled. A questionnaire like this will help your insurance company and/or the Social Security Administration determine your individual restrictions and limitations.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

DISABILITY BENEFIT TIP: What is "sedentary work," "light work," "medium work," and "heavy work" and does it effect your disability claim?

Doctors are often asked to complete forms stating their patients' restrictions, limitations, and general capabilities. Insurance companies ask these doctors to state whether a client is capable of Sedentary, Light, Medium, Heavy and Very Heavy Work, but the insurance companies do not give accurate definitions of each type of work. A doctor might, therefore, state that a client is capable of "light duty" work when, in fact, their restrictions would preclude them from performing such work. Often, a doctor may say "light duty" when they just mean something less than full duty. They don't realize that "light" means something different to your disability insurance company or the Social Security Administration. By writing that you can do a certain level of work when you cannot actually do that much activity, they may be seriously hurting your disability case.

If your doctor has been asked to complete any forms that state what your restrictions and limitations are, it is a good idea to provide them with the following guidelines (taken directly from the U.S. government's Dictionary of Occupational Titles) for the requirements of each type of work:

Sedentary Work - exerting (lifting or pushing/pulling) up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) or lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

Light Work - exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amoung of force exerted is negligible.

Medium Work - exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible force up to 10 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Light Work.

Heavy Work - exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Medium Work.

Very Heavy - exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Heavy Work.

REMEMBER: Give your doctor these guidelines before he or she completes any forms on your behalf. Remind your doctor to also consider non-exertional impairments (like difficulty concentrating because of medication side effects) that would make even Sedentary Work too difficult to perform.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

DISABILITY BENEFIT TIP OF THE WEEK: Long Term Disability Claims....Deadlines - Do NOT Miss Them

While every Long Term Disability policy and plan is different, they all impose deadlines that a claimant has to meet to file for disability benefits, to appeal a denial of those benefits, and to file a lawsuit once you have gone through the pre-suit claim process (what insurance companies call "exhausting administrative remedies").

When you first stops working because of a disability, you must apply for disability benefits and provide proof of your disability (i.e., medical records, vocational records, performance reviews that comment on your inability to do the job, "buddy letters" from friends or co-workers that know you and have observed your limitations, etc.). The deadline that applies to filing for benefits and providing proof of that disability can usually be found under the heading "Proof of Loss" in you policy or company's disability benefit plan. Policies and plans will require that you submit you application and proof of disability anywhere from within 30 days to up to a year after the date you stopped working. If you do not notify your insurance company within that deadline, the insurance company could deny your claim.

If your benefits are denied, or paid and then terminated, you will be provided a chance to appeal that decision. Again, different policies and plans have different deadlines, as well as a different number of times you may appeal before filing a lawsuit. Most employer benefit plans allow 180 days from the date of the denial/termination letter to file an appeal. Individual disability insurance policies may not offer an appeal or may offer a very short appeal window of 30 or 60 days. Read your policy or plan to find our your deadline.

NOTE: If you did not receive your denial letter until much later than the date on the letter, look at the date on the envelope to determine if the letter was sent on the same day that the letter was written. If not, keep the envelope as proof that the insurance company delayed mailing this letter, as this may give you more time to gather the evidence you would like to submit for an appeal.

It is important to understand that your policy or plan may require one or more appeals before you file a lawsuit, so do not think you can skip that process. Missing the appeal deadline may cause you to lose your claim forever.

Once you have gone through the pre-suit appeals, you may file a lawsuit. Your plan or policy may state how long you have to appeal. If it does not, your state law will determine the statute of limitations to file a lawsuit. If you miss this deadline, you will lose your right to file a lawsuit to recovery your benefits forever.

REMEMBER: Read your policy or plan thoroughly to determine what deadlines apply to your particular claim. Failure to meet those deadlines could result in the denial of your claim. If you are not sure what deadlines you must meet, consult with an attorney who specializes in disability cases. We recommend consulting with a disability benefit attorney from the beginning of your claim, but you should certainly contact an attorney if your claim has been denied before you file an appeal.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For a free consultation about your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker Toll Free at (866) 282-5260.

DISABILITY BENEFIT TIP OF THE WEEK: Pre-existing Conditions

When you file for Short and Long Term Disability, your insurance company will try to determine whether your disabling condition is a pre-existing condition. Depending on the provisions of your plan or policy, the period during which a condition would be considered pre-existing varies. Many plans/policies state that if you become disabled within the first 12 months of coverage, they will review your records for the year before you became eligible in order to determine if you treated for the same disabling condition. If so, they will consider it a pre-existing condition and deny benefits. For example:

Example A:

You begin working on January 1, 2006. You are eligible for Short and Long Term Disability coverage on April 1, 2006. You become disabled because of a car accident on October 1, 2006. Your plan/policy states that if you become disabled within the first 12 months of coverage that your insurance company will look back to your records for the 12 months before you were eligible for coverage - in other words back to April 1, 2005. Because you are disabled as a result of an accident after you became eligible for coverage, your insurance company will determine that your disablity is not the result of a pre-existing condition.

Example B:

You have a car accident on September 1, 2005, hurt your low back, and visit your doctor because of the pain. You begin working on January 1, 2006. You are eligible for Short and Long Term Disability coverage on April 1, 2006. On October 1, 2006, you stop working because your low back pain has increased to the point that you can no longer work. Your plan/policy states that if you become disabled within the first 12 months of coverage that your insurance company will look back to your records for the 12 months before you were eligible for coverage - in other words back to April 1, 2005. Because you went to the doctor for your low back pain during the 12 month period before you became eligible for coverage, your insurance company will determine that your disability is a result of a pre-existing condition.

Example C:

You have a car accident on September 1, 2005, hurt your low back, and visit your doctor because of the pain. You begin working on January 1, 2006. You are eligible for Short and Long Term Disability coverage on April 1, 2006. On March 1, 2008, you stop working because your low back pain has increased to the point that you can no longer work. Your plan/policy states that if you become disabled within the first 12 months of coverage that your insurance company will look back to your records for the 12 months before you were eligible for coverage - in other words back to April 1, 2005. Because you did not stop working until you were past the initial 12 months of coverage (i.e. April 2007), your insurance company will not look back to determine if you are suffering from a pre-existing condition.

Even if you have not been officially diagnosed with what your doctor concludes is the underlying cause of your disability, if you treated for the symptoms of the disability during the "look back" period, your condition will be considered pre-existing. For example:

You visit your doctor on December 1, 2005 because of numbness and tingling in your arms and your doctor diagnoses you with carpal tunnel syndrome. You begin working on January 1, 2006. You are eligible for Short and Long Term Disability coverage on April 1, 2006. Your symptoms worsen and you stop working on October 1, 2006. On November 1, 2006, your doctor discovers that you actually are suffering from Lupus, not carpal tunnel syndrome. Your plan/policy states that if you become disabled within the first 12 months of coverage that your insurance company will look back to your records for the 12 months before you were eligible for coverage - in other words back to April 1, 2005. Even though you did not have the same diagnosis during the "look back" period, you still treated for the same symptoms, and your insurance company will consider your condition to be pre-existing.

REMEMBER: It is extremely important to read your plan or policy to find out when you are eligible for benefits and when you are out of the "look back" period. If you suffered from any of the same symptoms during the period in question, your condition will be considered pre-existing. If you are not sure when you will be out of the pre-existing condition/"look back" period, consult with an attorney before stopping work.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

Disability Benefit Tip of the Week: How to Talk to Claims Administrators and Insurance Adjusters

In last week's Disability Benefit Tip of the Week, we suggested that every time you talk to someone about your disability claim, you should keep notes about who you speak with, including their name, phone number and extension, the date, and the time, as well as what you discussed. Here are some additional tips for speaking with claims administrators.

It is important to remember that when dealing with adjusters that they are paid by the insurance company (or an ERISA plan's third party administrator). They have a vested interest in denying your claim. The insurance companies are running a business, and they only make money when they collect more money in premiums than they pay out in benefits. That means they are looking for reasons to deny your claim.

When you speak with someone from the insurance company, they are taking notes on what you say and how you sound. These notes are kept in their computer with other information on our claim and can be used as evidence against you from your initial application all the way to a lawsuit. Even if you are "on claim" (being paid benefits on a monthly basis), the claim administrator will examine your statements. If you say something that indicates that you might have the capacity to work or something they might think is inconsistent with what you have said in the past, they will use that as a reason to deny your claim or cut off your benefits or to step up their investigation of your claim.

Simple statements about what you do during the day are recorded in the insurance company's logs. For example, if you mention that you enjoy sewing, your insurance company may allege that you are capable of sedentary (sitting) work. Another example would be that you mention you are looking into taking online classes. Even if you have not started the actual classes, the insurance company may try to use this to deny the claim, saying that you are capable of work activity.

Therefore, when speaking with your claim adjuster or adjudicator, do not speak with them as if they are a friend, no matter how nice or sympathetic they may be. You should be polite and respectful, but you should also be aware of what information you are providing. Be careful, because everything you say is on the record, even if you think it does not pertain to your claim.

REMEMBER: THE CLAIM ADMINISTRATORS AND INSURANCE ADJUSTERS ARE NOT YOUR FRIEND. AN INSURANCE COMPANY IS ALWAYS LOOKING FOR REASONS TO DENY YOUR CLAIM.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

Disability Benefit Tip of the Week: Documenting Your Correspondence

In order to ensure that your insurance company and Social Security received any letters, forms, or records that you sent, it is a good idea to use the following guidelines:

• Send everything via certified mail, return receipt requested
• If you do fax something, save the confirmation page
• Keep copies of everything you send to the insurance company or Social Security, including reports and forms you fill out
• Keep notes about who you speak with, including their name, phone number and extension, the date, and the time, as well as what you discussed
• Use some kind of organizational system, such as folders or a three-ring binder, to store and sort any correspondence. Keeping paperwork in order according to date is also a good idea. If you need to hire an attorney in the future, it will help him or her quickly understand the progress of your claim.

Keeping copies of any forms that you fill out will help you stay consistent when the insurance company or Social Security asks you to fill out similar forms in the future.

REMEMBER: You cannot be too thorough in documenting and tracking your claim. It is better to have too much information than not enough.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

Disability Tip of the Week: Taking Medication

When prescribed medications by your doctor, it is important to be compliant. If you do not take your prescribed medications, the Social Security judge or the Long Term Disability insurance company may view your claim unfavorably because you did not follow your doctor's orders and take the medication you were supposed to. They may claim that your condition is not as serious as you report it to be since you do not take your medications.

If you are not able to take the prescribed medication, ask your doctor to write clearly in his or her notes why this is the case. For example, if you find out that you are allergic or have unpleasant side effects, this should be clearly written in your medical records.

Likewise, if you do not have the money to fill a prescription, you should make every effort to seek help from social service organizations for assistance. Again, if you are unsuccessful and still cannot obtain the medication, make sure your doctor is writing this information down.

REMEMBER: Take your prescribed medications. There are many organizations that can help you afford your prescriptions.


Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY TIP OF THE WEEK: Statute of Limitations for Disability Insurance and ERISA Disability Claims

Generally, if an insurance company or an ERISA plan administrator denies a claim, you have deadlines to file a lawsuit or you lose your right to pursue the claim in court. It is important to understand what the deadline may be, but most people do not know where to look to find that.

In Florida for example, in order to file a lawsuit against an insurance company for disability benefits (after you have exhausted your administrative remedies), you must do so within a certain time frame. Florida Statute Section 627.616 states that no legal action may be brought before 60 days after written proof of loss has been given, nor can a legal action be brought after the expiration of the applicable statute of limitations from the time written proof of loss is required to be given. According to Florida Statute Section 95.11, you must file your lawsuit within 5 years. Other states have different statutes.

However, many plans/policies shorten that amount of time to three years or even less. Some ERISA plans have deadlines as short as 60 days after the last denial letter! Even if your state's statute of limitations is 3, 4, or 5 years, courts typically enforce the shorter deadlines in the plan/policy.

Therefore, you should request a copy of your plan document/policy from your insurance company and/or your former employer so that you can find out what the statute of limitations is to file a lawsuit.

REMEMBER: It is important to read your plan/policy carefully for language that states what the deadline is to file a lawsuit. If the plan/policy does not specify what the statute of limitations is, then your state's statute of limitation applies.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY TIP OF THE WEEK: Unemployment Payments

If you file for unemployment when you leave your job due to a disability, you damage your chances of receiving Long Term Disability benefits from your insurance company and from the Social Security Administration. When you file for unemployment, you are certifying that you are capable of working. This, obviously, undermines your credibility because if you certify that you are capable of working, your insurance company and the Social Security Administration will think that you are, in fact, capable of working.

If you receive unemployment benefits and you file for Social Security Disability ("SSD"), your SSD benefits may be reduced by the amount you received for unemployment.

REMEMBER: Even though it is tempting to apply for unemployment in order to have income while you are waiting for your disability benefits, this could ruin your claims for those disability benefits. If you have filed for unemployment, make sure you let your attorney know.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY TIP OF THE WEEK: Surveillance

"Surveillance" is video taken of you in secret when you do not expect it.

Most insurance companies hire private investigators to perform surveillance on their Long Term Disability claimants. They will film you, and often use the footage they obtain to prove that you are capable of more than you claim on the various forms they require you to complete. This is particularly common on the days surrounding an examination they have scheduled for you with one of their doctors (the so-called "independent medical exam").

Most investigators will spend a period of two to three days obtaining video footage of you around your home and running errands. They will not be filming inside your home, but will find an inconspicuous place near your home from which to film. They may also interview your neighbors for additional information.

Some things to keep in mind:

• If you and/or your doctor say that you cannot bend at the waist, the investigator will attempt to get footage of you bending over to do something simple like check your mailbox.

• If you and/or your doctor say that you cannot lift over 10 pounds, they will try to get footage of you lifting heavy groceries.

• If you and/or your doctor say that you cannot sit for more than 20 minutes, the investigator will try to get footage of you driving for long periods.

If you do something out of the ordinary, like take a long road trip, be sure to stop frequently, keep receipts from those stops, and document the trip and any physical consequences you experience as a result (for example, increased back pain, etc.). Be sure to tell those around you of any of the extra pain or other consequences you experience so that they can attest to it later. Do not "gut it out" just to save time or avoid being a bother to others you are traveling with.

If your insurance company gets surveillance footage that it considers incriminating, they will often send a field representative to your house to interview you. They will ask about your daily activities in hopes that you will use absolutes like, "I NEVER drive long distances," or "I CANNOT bend over." They will record your responses on a computer (not necessarily in your own words), print it out, and ask you to sign the record. Once they have your written statement, they will use that to question your credibility (if they have video footage of you driving long distances or bending, etc.). If your insurance company sends someone to interview you, be sure to avoid absolutes like those stated above. If you have an attorney, do not speak to the field representative without your attorney present. Do not sign any statement if it does not accurately represent the whole truth. Do not be afraid to tell the field representative to change anything on the written statement that you do not agree with.

REMEMBER: The insurance company can request surveillance of you at any time throughout your claim. Just because you have been approved does not mean that they will not try to obtain evidence that you are not disabled.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved.

DISABILITY TIP OF THE WEEK: How long do I have to appeal?

ERISA PLANS
Every disability insurance plan is different, but those that are governed by the Employee Retirement Income Security Act ("ERISA") must allow you an opportunity to appeal if your claim is denied. The letter denying your benefits must tell you how long you have to appeal. Usually you will have 180 days from the date of the denial letter to appeal. Once your plan administrator has received your appeal, it will have 45 days to render a decision. If necessary, your plan administrator can take an additional 45 days. If they take longer than 90 days, your attorney can advise you whether filing a lawsuit is advisable. In some instances, your insurance provider will pay you a lump sum "by exception" while they continue to review your claim beyond the 90 day deadline.

Most plans have a provision that requires a second appeal before filing a lawsuit. The deadline to appeal varies, but is often another 180 days. Again, the plan administrator can take 45 to 90 days to render a decision.

INDIVIDUAL POLICIES
Every individual policy has different deadlines. The letter denying your claim should tell you how long you have to appeal. Your policy will also have a provision that explains the appeal process and any deadlines.

SOCIAL SECURITY
If your claim for Social Security Disability benefits is denied, you are allowed 60 days to file an appeal from the date of the denial, plus 5 days for mailing. If you miss the deadline, you will be required to start the process over from the beginning. At the initial application phase, as well as after you have filed a Request for Reconsideration, the Social Security Administration can take anywhere from 3 to 6 months to make a decision. If your claim is denied after your Request for Reconsideration you again have 60 days plus 5 days for mailing to appeal.

REMEMBER: Every plan is different, whether governed by ERISA or not, so be sure to request a copy from your insurance carrier or employer. Pay close attention to the deadlines stated, or you could lose your chance to appeal or file a lawsuit.



Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

Disability Benefit Tip of the Week: Social Networking and Personal Websites

With the growing use of computers, many claimants have social networking and personal websites (such as Myspace.com and Facebook.com). These webpages can be viewed by anyone, including your insurance company and the Social Security Administration, even if you designate them to be private. If you have one of these sites, be aware that anything you put on it could be used against you - including pictures, videos, blogs, and even comments from your friends. For example, if you are claiming total disability due to back injuries but there is a picture of you hiking a mountain, this could ruin your case. Also be conscious of how frequently you update your site. If you are spending a lot of time working on the computer, your insurance company may claim you are capable of doing sedentary or desk work.

REMEMBER: When in doubt, leave it out! Even if you delete content from a site, insurance companies can use technology to view old versions of the page. While social networking sites are a great way to stay in touch with friends and family, err on the side of caution.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY BENEFIT TIP OF THE WEEK: Buddy Letters

While building your disability case, it is often helpful to have input from friends, co-workers, or relatives. These “buddy letters” help to paint a picture of your life before and after the onset of your disability and can be submitted to the insurance company or the Social Security Administration. You can give the following guidelines to whomever is writing the letter on your behalf.

While writing your buddy letter, be sure to follow the guidelines provided below. These guidelines were designed to help you write the most effective letter. When possible, describe concrete examples of experiences which are pertinent to your friend/relative's disability. Once you have completed your letter, his/her attorney should review the information

• Talk only about things you have witnessed.
• Do not rely on something your friend/relative may have said as material for your letter.
• Describe your relationship with your friend/relative. Include activities that your friend/relative was able to do prior to the disability, and how he/she is limited in those activities presently – Going to the park, driving a car, playing any kind of sports, or participating in hobbies. If he/she can no longer do such an activity, say so.
• Explain any lifestyle changes that you have seen in your friend/relative since the disability – Has their personal hygiene changed, are they wearing different clothing to accommodate for the disability, has their overall appearance changed at all?
• Talk about his/her ability to socialize – are their conversation skills affected by the disability, can they remember words, does their disability cause them to be easily irritable when dealing with other people?
• Describe any changes to his/her organization since the disability – Are their personal belongings still kept in order, can he/she keep track of obligations such as paying bills, meeting with people, or doctors appointments?
• Describe any changes in routine activities – Can he/she still go grocery shopping, complete household chores, care for pets?
• While completing this letter be as specific as possible. Instead of saying, “his/her head hurt,” say, for example, “she/he was wincing in pain because of a headache, she had to take 2 Advil and rest on the coach for 2 hours.”
• While writing this letter, try not to exaggerate in an effort to help your friend/relative. It has to be a truthful account of your experiences with him/her.
• Make sure to cite to particular examples throughout the letter. If he/she used to participate in a hobby, describe that hobby, how he/she participated, and how he/she is no longer able to participate. Giving dates of incidents and lengths of time are also helpful. If it took him/her 45 minutes to do an activity that normally would take 15 minutes, include that in your letter.
• Do not give a medical opinion. If you accompanied your friend/relative to the doctor, you can describe the events, however, do not say, “he/she is no longer able to work.”
• Stay within the bounds of your personal knowledge and experience with your friend/relative.

REMEMBER: To write an effective buddy letter, be specific with examples of what you have personally witnessed and do not rely on what you have heard from other people. Your letter does not need to be long to be helpful, but it MUST be truthful.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY BENEFIT TIP OF THE WEEK: Filling out Forms

During the initial application process and throughout the life of your claim, your insurance company, the Social Security Administration, and even the Veteran's Administration may require you to fill out various forms. One of the most common forms they will request from you is an Activities of Daily Living form. This type of form has various names, including things like "Claimant Statement," but the common elements are questions about what you can and can't do (i.e., your limitations). Whatever it is called, these kinds of forms are VERY important. Here are some tips for filling them out:

- Be thorough in your responses. Do not give one word answers. For example, if the forms asks, "Do you need help preparing meals?" Do not write simply write "yes." Tell them why you need help. For example: "It hurts to stand long enough to make a meal, so my wife usually prepares them for me."

- Be specific. Do not say, "I cannot sit for a long time." Instead, say something like, "When I sit for more than 20 minutes, my lower back starts to really hurt and I have to stand up and move around." Quantify your answers. "A long time" means different things to different people.

- Give examples of ways your disability has limited your activities. For example, "I only take a shower if I know somebody else is home, because I am afraid I will lose consciousness and fall and no one will be there to help me," or "I went to the grocery store last week but could not finish my shopping because my legs started to hurt too much to continue."

- Avoid absolute statements unless they are always true. Do not say something like, "I cannot sit for more than 20 minutes." Instead say, "It usually hurts when I sit for more than 20 minutes." Insurance companies often get surveillance footage of people making claims. If an investigator gets footage of you driving for 30 minutes without interruption and they have your written statement saying that you cannot sit for more than 20 minutes, they will deny your claim because they think you are lying. Another example might be if you say that you cannot bend at the waist, they might catch you leaning over to check your mailbox.

- List all of your limitations. Most forms do not include a section to list your limitations that are not physical. If you experience fatigue, difficulty concentrating, memory problems and/or irritability, etc., be sure to list those limitations.

-Do not be afraid to attach additional paper if the space provided for your answers is not sufficient.

In general, remember that you are trying to give the person that is deciding your claim a complete picture of your condition. Do not limit your answers simply because there is not much space provided for them. Always be truthful and thorough and it will help build your case from the very beginning.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

Insurers Faulted as Overloading Social Security

The following is a story quoted From the New York Times:
By MARY WILLIAMS WALSH

Published: April 1, 2008

The Social Security system is choking on paperwork and spending millions of dollars a year screening dubious applications for disability benefits, according to lawsuits filed by whistle-blowers.

Jessica Ortiz of San Diego said her disability insurer called more than 10 times after she was hurt in a car crash, insisting that she apply for Social Security. She was denied, as she had expected.

Insurance companies are the source of the problem, the lawsuits say. The insurers are forcing many people who file disability claims with them to also apply to Social Security — even people who clearly do not qualify for the government program.

The Social Security Administration defines “disabled” much more stringently than the insurers generally do, so it rejects most of the applications, at least initially. Often, the insurers then tell their claimants to appeal, the lawsuits say, raising the cost.

The insurers say that requiring a Social Security assessment is a standard practice and that there is nothing wrong with it.

The policies they sell allow them to coordinate their benefit payments with others to make sure no one is paid twice. Thus, if a disabled person can get benefits from somewhere else — like workers’ compensation, a disability pension or Social Security — the insurance company can reduce the benefit check by that amount.

The flood of referrals, however, is making it hard for Social Security to respond to people who are truly disabled, said Kenneth D. Nibali, the former top administrator of the Social Security disability program.

“Anybody who is forced to come into this system, and who doesn’t need to be there, is affecting someone else,” said Mr. Nibali, who retired in 2002 and is serving as an expert witness for the plaintiffs. “They’re holding up cases for the people who have been waiting for months and years, who in many cases are much worse off.”

Already, the disability program is in much worse shape financially than the old-age portion of Social Security. It is projected to run out of money in 2026, 16 years ahead of the old-age trust fund.

The disability caseload is also expected to grow as the work force ages, since recovery time increases with age. The number of people waiting for hearings on their claims by an administrative law judge has more than doubled since 2000, and the average wait has grown to 512 days in that time, from 258 days.

The Social Security Administration is not an active participant in the lawsuits and declined to comment on them. A spokesman, Mark Lassiter, said Social Security does not keep track of how many of its roughly 2.5 million annual applicants for disability are referred by insurance companies. But he cited academic research showing that 18 percent acknowledged privately that they were unqualified, because they could still work. “It is probable that many of these claimants were required to apply,” Mr. Lassiter said.

Jessica Ortiz, a 27-year-old gas station attendant in San Diego, said that was what happened to her. Her disability insurer, the Unum Group, called more than 10 times after she was hurt in a car crash, insisting that she apply for Social Security and asking repeatedly where her application stood. Unum was paying her only $50 a month under her policy, she said, which seemed a small amount to merit so much attention.

She did not need or want money from Social Security, and did not think she was entitled to it. Her doctors had told her she would recover, and Social Security is limited to people whose disabilities are total and permanent. But she applied because Unum insisted, she said.

Ten months after her accident, Ms. Ortiz returned to work. Social Security turned her down, as she had expected. People who can work are by definition unqualified for disability pay from the government. But when she told the Unum representative what had happened, he told her she could still appeal.

“If I were the government, I’d be pretty upset,” she said. “No wonder the pot could run out of money.”

When the circumstances of Ms. Ortiz’s case were described, a spokesman for Unum said he could not comment without reviewing her case file. The spokesman, Jim Sabourin, said the company believed that it always had valid reasons for telling people to apply for Social Security.

Forcing people who are injured to apply for Social Security before paying their claims appears to bolster insurers’ profits in several ways. If claimants refuse to apply, the insurers can simply stop paying their benefits, said Dawn Barrett, an employee of the Cigna Corporation, who grew frustrated sending people to Social Security and who is now a plaintiff in one of the lawsuits. More typically, she said, people apply for Social Security when an insurer tells them to. That allows the insurer to reduce its claim reserves, money that is kept in conservative investments for benefit payments. And in the insurance industry, smaller reserves mean bigger profits.

“It’s all about the numbers,” Ms. Barrett said.

Finally, disability insurers tell many of their claimants to appeal Social Security’s rejections again and again, until some are finally accepted. Then the insurers can take those people off their rolls, shifting the cost to the government.

Whistle-blowers have filed lawsuits against the Unum Group, America’s largest disability insurer, and Cigna, another large one, though there is no dispute that the Social Security requirement is an industrywide practice. Unum, with revenue of $10.5 billion, paid disability claims of $4 billion last year.

Both companies said their claims practices were fair, legal and consumer-friendly.

“Our goal is to ensure that each member receives all of the benefits to which he or she is entitled,” said Jill Roman, a spokeswoman for Cigna.

The lawsuits do not fault the idea of coordinating benefits with Social Security and workers’ compensation. Instead, they contend that insurers are recklessly dumping people on Social Security’s doorstep, without properly screening them to make sure they have a chance of qualifying.

The typical long-term disability policy says workers can collect when they are unable to do their own jobs for some period, usually more than five months. Social Security, by contrast, will pay only those people who are so badly disabled they cannot do any job at all. The disability must be one that will last more than 12 months or that will lead to death within that time.

Mr. Sabourin, the spokesman for Unum, denies the suits’ accusations and says that his company does screen people. He said Unum considered it in the best interests of its claimants to try for Social Security, because the federal program offers advantages over private insurance. Even though the federal requirements are tough, he said, Social Security has certain exceptions and trial programs that Unum’s claimants might qualify for.

Unum is also concerned that the lawsuits might lead to changes in federal rules that require Social Security to vet all applications thoroughly. Any changes might drive up the cost of disability insurance premiums, Mr. Sabourin added. Unum plans to file a motion for a summary judgment in its lawsuit, which is in Federal District Court in Boston. The case is to be heard this fall.

Both whistle-blower lawsuits cite the federal False Claims Act, a law that allows affected government programs to recover triple damages. The lawsuits were brought by people contending that the insurers were knowingly committing fraud.

Mr. Nibali, the retired Social Security administrator, says the disability program has “an open-door policy” and is required to seriously consider all applications, even those that might seem improbable. While deciding whether a 65-year-old should get retirement benefits is relatively quick and easy; deciding whether someone should get disability benefits is not. The Social Security Administration compiles detailed medical records, sends applicants to doctors for examinations and tests, reviews their work histories and sometimes interviews their friends and relatives.

Rejections can be appealed again and again.

“A person can come in and file a disability claim with us as many times as they want to,” Mr. Nibali said.

Linda Simmond, a 41-year-old mother in Atlanta, has been at it for four years. She worked as the supervisor of 10 Little Caesars pizza shops in Detroit but had to stop when she was found to have carpal tunnel syndrome, a wrist injury, from rolling out pizza dough. Surgery did not help.

Little Caesar Enterprises was insured through Unum, which started paying Ms. Simmond disability benefits of about $1,780 a month, but told her she had to apply for Social Security. She did so, and was rejected. Ms. Simmond thought that was correct.

“I’m not totally disabled,” she said. “I’ve seen people with one hand, no legs, working, so I know I can do something.”

Unum told her to appeal. She refused. Unum stopped sending her checks. After several months with no income, Ms. Simmond relented and filed the appeal. Unum then resumed her payments — but before long, Social Security rejected her again, and the whole cycle began anew.

Unum is now paying Ms. Simmond her benefits, but warning her that if she does not apply for Social Security again, it will stop her checks a third time, she said. “I need my benefits,” she said. “I have two children. I have a lot of debts. I’m going to have to do it, but I don’t believe in it.”

When Ms. Simmond’s situation was described to him, Mr. Sabourin said he could not comment on it without reviewing her case file.

Mr. Nibali has calculated that it costs $1,180, on average, to process a single Social Security disability application to the first decision, usually a rejection. If the applicant persists through the first three levels — the initial review, a reconsideration and a hearing by an administrative law judge — the case will cost the system an average of $4,759, he found. It is possible to appeal even higher, adding further to the cost. Lawyers from the firm Phillips & Cohen, in Washington, who are representing the plaintiffs, have been working with statistical samples. Their numbers suggest that the industry has been sending tens of thousands of dubious claims to Social Security, costing the system hundreds of millions of dollars over the last decade.

Mr. Nibali said he believed that Cigna, Unum and other disability insurers had enough data on their claimants to weed out many meritless applications before sending so many people to Social Security. That would help the program’s finances, he said. “We’re not here to give money away.”

Quoted from http://www.nytimes.com/2008/04/01/business/01disabled.html?_r=1&hp=&oref=slogin&pagewanted=all