1. Review Standards
a. Internal Appeal
Under ERISA, the internal appeal must be performed on a ‘de novo’ basis. In other words, they must review the case ‘anew’ or ‘afresh’, without consideration to the previous determination by the case manager. Some policies allow for multiple internal appeals.
b. Court Appeal
If your appeal(s) is unsuccessful, you will be left with having to take your case to Federal Court in the district you are located in. If your policy gives, and most all of them do, full discretion to the policy administrator, your case will be reviewed by the court under the ‘arbitrary and capricious’ standard. This means you must show that the insurance company abused their discretion in making their decision to deny your claim. The court may feel that the wrong decision was made, however unless they feel that the decision is blindingly obvious and the insurance company acted entirely unreasonably in their findings, the insurance company will prevail. This is a very difficult hurdle for a claimant to clear. Your case must include as much information on you and your illness as possible; even if you think something is obvious, include it.
2. Your Case Manager is most likely incentivized to terminate your claim. They are trained to believe you are faking your illness. When the truth is not in line with their objective, they often avoid and ignore it. Unless it is clearly and forcefully articulated and that they would be acting in an ‘arbitrary and capricious manner’ in not considering it in their decision, they will simply ignore undocumented realities. They will take every opportunity to make wildly invalid assumptions and draw subjective conclusions that will support their ultimate goal. You will be required to prove otherwise. They are, of course, hoping you do not have the resources to do so. They have only one motivation, and it is not what is in your best interest.
3. A diagnosis, no matter how threatening it sounds, is not what determines disability. Disability is determined by the limitations presented by your conditions. There are many people diagnosed with CFIDS, Fibromyalgia, or other illnesses who are perfectly capable of working on a regular and sustained basis. In order to be approved for disability, your particular condition must limit your ability to perform reliably in a 40 hour/5 day basis in a work environment on a sustainable basis. You must be able to prove these limitations. No one is simply going to take your word for it.
4. While there are no definitive diagnostic tests for a diagnosis of CFIDS, there are nonetheless tests to prove numerous of the underlying debilitating conditions as well as ample case law and citable sources to support subjective evaluations on the part of medical professionals. You must be well armed with these in your appeal.
5. LTD ‘Physician Advisors’ or ‘Consulting Physicians’ and ‘Independent’ Medical Examiners are not all unethical, however there are plenty of ‘hired guns’ that are very proficient in protecting their client’s interests for the enormous fees they receive for little work. Your medical resources should if at all possible be stronger than the LTD’s. Seek out regionally or nationally recognized experts in your debilitating conditions as well as CFIDS in general. For example, your neurocognitive evaluations should be done by a board certified Neuropsychologist with a recognized knowledge in the cognitive characteristics of CFIDS. If you are sent to an IME, make sure you have plenty of supporting documentation on CFIDS and your Objective Medical Evidence. If you give it to him/her, they can’t ignore it.
6. Once you submit your appeal, that’s it. You can’t add anything to it if it ends up going to a judge. Remembering that this is your ONLY opportunity to document your case in the event your appeal is denied and you have to go to trial, your appeal must be trial ready. Prepare it not as if it is going only to a case manager, but that it will ultimately be reviewed by a judge. The flow of the documents must basically walk an impartial person through the entire situation, educating them on your illness as you go along, and leading to a conclusion which should be a no-brainer. Your writing should reflect a judge as a potential audience; speak past the case manager. This also helps send the message to the insurance company that you are expecting, and prepared, to take the case to court.
7. The case file can be a gold mine of information on ERISA violations and general bad behavior on the part of the case manager. Once it is received, go through it line by line and identify misdeeds or incompetence. Make sure they are aggressively addressed in yours or your attorney’s statement. They specialize in proactively attacking your credibility; don’t hesitate for a moment to question theirs.
8. It is hard to imagine that any decision the insurance company makes is not at least as much, if not more, influenced by the legal implications than by the medical realities of the case. Whether or not you actually have a debilitating condition is usually irrelevant to them, the question is whether or not they get away with not paying you regardless of the medical justification. Structure and word your appeal assuming that it will be reviewed by in-house counsel making a risk assessment on your case. They will probably be asking themselves: 1) Does this person have a legitimate claim? 2) Does the claimant have the will and/or resources to go to court? 3) What are our chances of winning if it goes to court? Even if they believe your claim is legitimate, if they think your case is low risk from a legal standpoint, you will probably be denied.
9. Attorneys are expensive, very expensive, and busy, very busy. To properly appeal a termination, a lot of leg work has to be done, and the legal knowledge that an attorney provides is not always necessary for a lot of the work. It does not require an attorney, or even a paralegal, to research relevant information on your conditions for example. No sense in paying law firm fees for something for which they have no added value and is hard for them to focus on. However, having CFIDS it’s not always easy to have the physical and cognitive energy and discipline to do things like that yourself. An effective appeal team should leverage the use of a non-attorney advocate that understands what needs to be represented, how to find it, and how to articulate it; it might just be a family member or friend that has the time, energy, and smarts to figure it out and can write well. Even if you have to pay someone, it’s bound to be substantially less expensive then legal fees.
Make judicious use of an attorney for the things that they are best at, including understanding ERISA guidelines, making the legal argument for your claim, reviewing all documents, and interfacing with the LTD. Not having an attorney invites the LTD to attempt to bully you and assume that you are an easy mark for termination. A good advocate can get a lot more accomplished for a lot less money.