Guidance for submitting your own request for review

Guidance for submitting your own request for review of a denied benefits claim governed by the Employee Retirement Income Security Act of 1974 (ERISA)

(Campins Benham-Baker prepared the following guidance for the Legal Aid Society-Employment Law Center Workers’ Rights Clinic.)

If you have to appeal a denial or termination of short-term or long-term disability benefits (also known as submitting a “request for review”), first, try to find an  ERISA lawyer promptly as you have 180 days from receipt of the denial/termination letter to appeal.  If you do not submit a written appeal within the deadline, you may lose your right to further pursue your claim.  If your appeal is denied and the only recourse left is to file a lawsuit, the claim file at the time the claims decisionmaker responds to your appeal is typically all that a court will review when deciding whether or not you are entitled to benefits.  As such, many lawyers may not take your case after a final denial if they did not assist with the request for review. 

If you cannot find a lawyer, do at least the following:

1)      Request your claim file from the plan.  Review the denial letter and the documents in the claim file for reasons your claim was denied so that you can address those issues in your request for review.

2)      Review the plan document. This is the document setting forth the terms and conditions of receiving benefits.  If you do not have it, it should be in your claim file.  If it is not in your claim file, be sure to request it from the Plan Administrator, who is not always the claims decisionmaker.

a.       Look especially at the definition of “disability.”

b.      Many plans will change the definition of “disability” or “disabled” at 24 or 36 months from being unable to do the material duties of your occupation to unable to do the material duties of any occupation that you could reasonably hold.  Tailor your submission to the appropriate definition.

3)      Gather medical records from all relevant doctors and medical facilities.

a.       For denial of benefits: gather medical records from the first point in time when you began to experience the symptoms of your disability.

b.      For termination of benefits:  gather medical records at least as far back as the date you are deemed no longer disabled and further back if that helps put your disability in context.

4)      Get a job description.  One may be in your claim file.

5)      Gather pharmacy records (for the same time periods outlined above).

6)      If you experience side effects from any medications, research those medications and their side effects and provide that information.

7)      If you have a physical injury that shows up on tests, such as MRIs, get up-to-date tests.

8)      Get your primary doctor(s) to write letters explaining your disability and why you cannot work. 

a.       If the doctor is too busy to write a letter, you can provide a list of questions for him/her to answer.  Pertinent information includes some or all of the following:  1) your diagnoses; 2) your treatment plan; 3) your symptoms; 4) your medication side effects; 5) your restrictions and limitations; 6) your subjective complaints and the objective findings which support the complaints; 7) the doctor’s opinion on surveillance, if any.

b.      If the Plan has consulted an outside doctor, it may be helpful to have your doctor respond to that report.

9)      Have your family members, friends, co-workers, or others who may have first-hand information about your disability to prepare written statements.

10)  If you have an approved claim for Social Security Disability Insurance (“SSDI”) benefits, be sure to submit the decision granting your claim.  Also, request your claim file from your local Social Security Administration office as it may contain helpful medical information.

11)  If you have a Workers’ Compensation case and medical evaluations that support your disability claim, obtain a copy of your Workers’ Compensation case file.

12)  Submit all of these documents together, along with a narrative letter explaining why you are disabled (i.e. your medical conditions and how they affect your ability to work). 

13)  Take your time to do it right.  DO NOT miss your deadline, but do not omit critical information in an effort to get this process done quickly.  Remember, if your appeal is denied, you will likely be prohibited from submitting additional information at a later time.

14)  After it is submitted, watch the calendar.  If you do not hear back in 45 days, send them a letter reminding them of their obligations.  If you do not hear back in 90 days, send them another letter and begin trying to find a lawyer again. 

a.       Their obligations are found at:  29 C.F.R. 2560.503-1(h)(4)(i)(1) & (h)(4)(i)(3)(i):

b.      [T]he plan administrator shall notify a claimant in accordance with paragraph (j) of this section of the plan's benefit determination on review within a reasonable period of time, but not later than [45] days after receipt of the claimant's request for review by the plan, unless the plan administrator determines that special circumstances (such as the need to hold a hearing, if the plan's procedures provide for a hearing) require an extension of time for processing the claim. If the plan administrator determines that an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial [45]-day period. In no event shall such extension exceed a period of [45] days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan expects to render the determination on review.

If your appeal is denied, try again to find a lawyer.  If the administrator will no longer consider additional information or another request for review, your next recourse is filing a lawsuit in federal district court.