Re: long term disability determination

SSA determinations differ from those under private disability insurance contracts. The insurable coverage available under the contract, terms and conditions, and company policy dictate over the matter. Discovery of these and other aspects is crucial. Once you enter into litgation, and attempt to pursue your case without an attorney, much of the benefit of discovery may be lost.

If your SSA determination encompasses a determination of your not being able to pass the "substantial gainful activity" test, as set forth under 20 CFR Sections 404.1571-404.1576, you may be able to show that the administrative determination is capricious. Under this section of SSA code, take note that the definition is broken down in that "substantial" and "gainful" modify "activity" and not each other. Similar language in the private disability contract may be more strictly worded.

The terms of the disability contract, the specific carrier in question and its reputation, and the basis of your SSA determination have much to bear upon your question.

An SSA determination will not necessarily be presumptive upon a private contract which may apply an entirely different basis for a disability determination.

Most important is the willingness and reputation of your treating physicians to pursue a claim and provide expert testimony in your behalf. As with any insurance matter, there may be preclusions that pre-empt your ability to gain access to court. Satisfaction of abstension is critical to accessing the courts and will go a long way toward an administrative remedy short of adjudication. Settlement may be possible with ample factual research and judicial opinion regarding your condition.

Appeal of disability cases are usually complex and involved. The assistance of an attorney is recommended.

If you wish to discuss your case, call me at (410) 799-9002.

G. Joseph Holthaus III

Re: long term disability determination

Be careful here because there are legal pitfalls for the unwary. Your claim is governed by the federal law known as ERISA. If you sue the insurance company, you may not have the right to a jury trial, and the Court may not consider new evidence that you may want to introduce, e.g., regarding the validity of functional capacity evaluations. The Court may only consider the insurer's administrative claim file to determine whether the insurer's decision was arbitrary and capricious. Under this standard of review, if there is any reasonable basis for the termination of disability, based on the contents of the insurer's claim file, the insurer's decision will be upheld. These are very difficult cases, and you really need an attorney who has experience with ERISA disability claims. If one of the Unum companies is your insurer, get an attorney who has litigation experience with this insurer, as it is notorious for terminating disability coverage arbitrarily. Good luck.