In Denial

Filing any disability claim—and especially disputing a denial—can be daunting. “People don’t know where to begin,” says Geannina Burgos of the Dabdoub Law Firm in Coral Gables, who represents employees in disputes with employer-sponsored disability insurance companies. “Even though, statistically, one out of four people have to file some type of disability claim in their lifetime.”

Employers do not have to provide disability insurance, but for those that do, the policies usually cover 60% of your paycheck and are governed by federal law. The Employee Retirement Income Security Act of 1974 (ERISA) allows for broad benefits coverage to most workers at reasonable prices, but limits recourse when a disability claim is denied.

“You have to appeal to the same insurance company that just denied your claim,” Burgos says. “And typically there’s one shot at this. You have one appeal. The insurance companies are not required to tell somebody to hire an attorney. Sometimes they’ll say, just write ‘I appeal,’ on a paper and we’ll review the records. The problem with that is then there’s no additional evidence submitted, and if they were denied initially, they’re going to be denied again. The biggest kicker with that is, most of the time, once an appeal decision is denied, then that’s it. The record is closed.”

After appeal, a person can have a denial reviewed by a federal judge, but the court is limited to determining whether the insurer’s decision was reasonable based on evidence submitted at that time. 

“So if there was nothing in that file before, when a judge looks at it, it’s going to be hard to win that case, because the insurance company was reasonable in denying the claim if the medical evidence isn’t overwhelming. The law is stacked against the individual in this area,” says Burgos. “You have two private litigants—a private company and a disabled person—and the court gives deference to one. That doesn’t exist in any other area of law.”

Burgos recommends getting an attorney during the initial claim process, especially if the disabled person is young and a high earner. If you go it alone, pay attention to deadlines to submit an appeal, which are usually 180 days. 

The first thing to do if you find yourself unable to work, she says, is file a Family and Medical Leave Act (FMLA) claim. “You’ve got to get your doctor to support you in writing in a way that is very clear as to why you can’t work.” 

Often people think a diagnosis is what they need to document, but it’s the symptoms preventing someone from working that must be documented. The standard physician’s statement filed with the claim is not enough; she recommends people gather medical records and letters, and sometimes get extra testing. 

“The issues people run into is either they don’t have the doctor’s support or the medical records aren’t showing the severity of the person’s condition,” she says. “That’s where we jump in and look at the file and say this is what we need from your doctor. It’s hard for somebody if they’re sick and trying to handle this on their own.”

That’s the case for some COVID-19 long-hauler clients. “Those are complicated because the person’s symptoms can be cognitive, can be physical,” Burgos says. “We’ve been successful, but we really work up the files. It’s like putting a puzzle together, connecting the pieces, for the other person to be able to see the person is disabled.”

Burgos knows from personal experience that invisible disabilities are the most difficult to prove. Her father-in-law was diagnosed with myasthenia gravis in his 20s and had to fight a long time to get his benefits approved. 

Burgos says it can also be hard for people to admit they can’t do what they once did, so they keep working. “If you are sick and you’re struggling at work, I would file, because once you lose your job, your benefits are over.”

In the meantime, another option is to request an accommodation at work.

Jason Berkowitz of BT Law Group in Miami, who has represented clients on both sides of employment and discrimination lawsuits, says the interplay of the Americans with Disabilities Act, FMLA and workers’ compensation are the Bermuda Triangle of employment law. 

 “Employers don’t understand that, when someone comes forward with a potential disability, there is a requirement that the employer engage in an interactive process to try to figure out with the medical provider what is the disability and what accommodation, if any, would allow that employee to perform the essential parts of the job,” he says.

A common accommodation request from employees, especially since COVID, is to work from home, but the employer does not have to agree. “The employer, based on the recommendations of the medical provider, is the one that ultimately selects what is the reasonable accommodation that would not place an undue hardship on the organization,” he says. But if an employer does not offer reasonable accommodation, an employee could have a discrimination claim.

Berkowitz suggests employees be forthcoming about their health situations and talk to HR or their supervisors. On the flip side, employers need to realize that this conversation—when an employee presents a medical condition impacting their ability to do the job—puts the burden on the company to engage in that interactive process. “There’s no magic words,” he says. “They don’t need to say, ‘I need an accommodation.’”

The length of a reasonable accommodation is a gray area. “The courts have been clear the employer is not required [to provide] an indefinite accommodation, but there’s a big gap between no accommodation and indefinite accommodation,” he says.

Disability benefits are not necessarily indefinite, either. “Group disability policies typically pay until retirement age, but they are often reviewed after two years,” says Burgos.  

She adds, “I don’t have one client who is milking the system and wants to be on disability. For people to put themselves through multiple doctor’s appointments and evaluations, losing their careers and taking a hit on their income—nobody is doing this for fun. They legitimately need these benefits. I’ve had clients cry over the phone when I tell them I’ve gotten their benefits approved—grown men, grown women. The stress of being sick plus the financial strain can be overwhelming.”

The Benefit of Benefits

“Any worker should take all the benefits their employer offers,” Burgos advises. “The good thing about ERISA is you can get coverage cheaply through your employer. A not-so-great disability policy is better than no policy. You think you’re not going to get sick, but I’ve had clients in their 20s and the coverage is what saves them,” she says. “You just never know.”