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.

Radio Story on the Wait for Social Security Disability Benefits

Click here to hear or read a story from American Public Media's Marketplace program, aired on 9/4/08, about the wait for Social Security Disability benefits.


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.