The Disability Application

All too often an insured’s claim for short term disability benefits is approved by their disability insurance carrier only to have the subsequent claim for long term disability benefits, which uses the same medical information used to approve the short term disability claim, denied by the insurance company. It is frustrating, illogical and inherently wrong to say the least. Arrogantly, the disability insurance companies, typically “protected” by the auspices of ERISA and the insurance industry friendly arbitrary and capricious standard of review, argues that they provided a full and fair review of the claim and that it has done nothing wrong in denying the claim. However, every now and then common sense does prevail.
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In Lavery v. Restoration Hardware Long Term Disability Benefits Plan, 2018 WL 3733936 (D. Mass. August 6, 2018), Plaintiff John Lavery (“Lavery”) brought claims under the Employee Retirement Income Security Act (“ERISA”) against Defendants Restoration Hardware Long Term Disability Benefits Plan (“the Plan”) and Aetna Life Insurance Company (“Aetna”) over the denial of his claim for disability benefits.

Benefit Provisions

The Plan states that “Long Term Disability Coverage does not cover any disability that starts during the first 12 months” of coverage if it is “caused or contributed to by a ‘pre-existing condition.’” The Plan further states that “a disease or injury is a pre-existing condition if, during the three months before the date you last became covered: it was diagnosed or treated; or services were received for the disease or injury; or you took drugs or medicines prescribed or recommended by a physician for that condition.”
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Disability insurance attorneys Gregory Dell and Rachel Alters discuss the challenges insurance companies impose on disability claimants who are diagnosed with cancer, receive treatment, and then are “cancer free” but are still unable to work and need disability insurance benefits. Until someone faces cancer themselves or has a close loved one who goes through it, many people have the mistaken idea that when cancer has been beaten and they are told they are NED – no evidence of disease – that they are cured and life goes back to normal.
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Disability insurance attorney, Gregory Dell, of Dell and Schaefer, summarizes the new regulation text in the following way: “If the plan will rely upon new evidence or rationale to support its denial and appeal, the plan must provide such information to the claimant as soon as possible and sufficiently in advance of the date on which the notice of the adverse benefit determination on review is due.”
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In Cara R. Denney v. Unum Life Insurance Company of America, plaintiff worked for Wagner Equipment Company as a Computer and Technology Instructor. She said the job required extensive computer use and the ability to instruct students accordingly. It also required her to travel, stand for long periods of time, and carry heavy equipment up to 25 pounds.

In June 2015, she underwent bilateral reconstructive surgery on both of her feet and received short term disability benefits from Unum. She returned to work on a part-time basis in October 2015.
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