Frequently Asked Questions

It is a fact of life that some injuries and illnesses last longer than others. Long-lasting injuries and illnesses will affect a worker’s ability to work in the long term. Long term disability insurance provides income replacement for this extended period of time.

Disability insurance policies will differ. Determining how long you can expect to receive long term income replacement will depend on your policy.

One significant difference between short-term vs. long term disability is the length of time a condition lasts. Certain injuries, like a broken limb for instance, take a relatively shorter time to heal. Once a worker recovers, they can resume their duties at work. In the meantime, a worker may receive short-term disability benefits to make up the loss in income. These benefits can last anywhere from 3 months to 1 year, depending on the injury.

Other conditions, like arthritis for example, will not heal in a definite period of time. Some conditions will never go away completely. This means that a worker will be unable to perform his or her job duties for an extended or indefinite period of time. If you have a private disability policy or an employer-sponsored group long term disability insurance, you will apply for the LTD benefits while your short term benefits are being paid. In these cases, you should seek out a long term disability attorney to help recover long term disability benefits. Long-term disability benefits may last anywhere from 1 year to decades, and usually pay until your regular retirement age.

Workers who file for long term disability benefits will wait out a longer elimination period. This can last anywhere from 3 to 9 months, and the elimination for group long term disability plans is the same period of time that an employer’s short term disability benefits pay

For this reason, you should check to see whether you qualify for both kinds of policies. In some cases, workers can receive short-term benefits while they await a decision on their long term disability claim. You should also work closely with a disability lawyer when filing for long term benefits. Having your claim denied after waiting so long may be disastrous to your finances.

So, what exactly should you do if your claim gets denied? Fortunately, a denial does not mean the end of the world. If you are making a claim under your employer’s group disability plan, you will have the option to appeal the insurance company’s denial. Many appeals result in winning the benefits previously denied. The disability lawyers at Tucker Law Group encourage you to seek help to do this, however. The appeals process is just as difficult as the initial filing process, but it actually has more technical and has more legal traps. For example, there are requirements to get expert reports submitted during the appeal, and if you fail to do that, you will never be able to introduce those expert opinions in court if your appeal is denied. Working with a disability attorney is your best bet for successfully appealing a denial.

When filing for long term disability benefits, it is extremely important to know whether your policy is subject to ERISA. Disability policies that are subject to ERISA undergo a specific form of litigation that is distinct from state-sanctioned litigation. Because ERISA is a federal law, ERISA disability claims are litigated in the federal court system. Additionally, a policy that is subject to ERISA will also have a specific appeals process. This appeals process prohibits introducing new evidence after a denial. For these reasons, it is important to work with an ERISA attorney to secure your benefits.

If you are currently unable to work because of a health condition, then you may be wondering how you can afford a lawyer. We recommend that you look for a disability attorney who takes this into account. Many law firms will make special provisions for disabled workers.

Established in 1974, ERISA stands for Employee Retirement Income Security Act. This law applies to most benefits purchased or provided through an employer group. It governs how employers must handle all employee’s benefits, from the front line worker all the way up to the CEO. ERISA also gives workers certain rights, including:

• ERISA requires benefit sponsors to provide employees with benefit plan information.
• ERISA establishes minimum requirements for how employers and unions fund and manage benefit plans.
• ERISA requires employers and unions to set up a process by which workers can file for their benefits and appeal denials.
• ERISA guarantees that employees will receive their benefits even if their employer declare bankruptcy.
• ERISA gives workers the right to sue benefit plan administrators (usually an insurance company when disability insurance benefits are involved) for failing to carry out their duties.

There is no qualifying for ERISA. You are either participating in an ERISA plan or not based on how you received your benefit plan coverage. If it is through your employer, the odds are that ERISA applies.
The only exception in the private sector are individuals who work for a governmental entity or for a church or church-run organization. Private individual disability insurance purchased outside of an employer’s group plan is also not subject to ERISA.
ERISA covers a whole host of different types of benefits. These range from retirement, 401(k), some severance plans, and the various types of insurance that you can get through work, i.e. accidental death, disability, dental, health, life, and vision coverage.

Under ERISA, a benefit plan administrator must give you a copy of your benefit plan within 30 days of you delivering a written request for the document. They must also follow certain rules about what must be included in a denial letter if the administrator decides you do not qualify for plan benefits. You then have a certain number of days guaranteed to allow you to appeal before you can file a lawsuit (in a disability insurance claim, you have 180 days to file your appeal). You have the right to send in any evidence that you want to support a new claim or during an appeal. You also have the right to see the evidence that the insurance company relied upon.

Start by filing a claim. Ask your human resources office how to do that. Be sure to ask for a copy of the insurance policy for the plan also. If they cannot give you one immediately or one is not available online, you should send a written request for in a way where you can prove the date it was received. Keep in mind that claims, appeals, and litigation under ERISA can be complex For this reason, securing your benefits may be a little tricky. To be sure, many people receive denials on their claims for this very reason.

While the following outlines some pointers, we recommend you speak with an experienced ERISA attorney for a richer understanding. Getting in touch with a well-established ERISA law firm is the best way to secure your benefits.
As mentioned above, it is important to understand that insurance policy documents are crucial. They provide the rulebook for what you can claim and how you can claim it. Getting all of the relevant documents is vital.

If your claim gets denied, you will only have 180 days to appeal the decision. That 180-day period may be the most important in all of your claim. If the insurance Company has denied your claim, you only have 6 months to compile all of the evidence that you would ever want the court to consider. Once your appeal is decided by the administrator, the file is effectively sealed and neither side can add more evidence about whether you are disabled or not. It is absolutely crucial that you have all of the types of evidence that you need included in your case, including expert medical reports, expert vocational reports, and other objective tests that prove your disability. For that reason, if you have not already done so, we recommend hiring an experienced ERISA attorney as soon as you receive a denial letter on your claim.

If your appeal is denied, your lawyer will have to file a lawsuit in federal court. Under ERISA, a jury will not hear your case. A federal judge will make the final ruling, and this will occur without any testimony. Very often, the judge will decide your case on motions without any type of trial at all based solely upon the documents that were in your claim filed during the claim and appeal.
Again, we encourage you to approach an ERISA lawyer before pursuing this process. As you can see, the stakes are high and the process is formidable.

In all likelihood, yes. You should seek out the help of an ERISA attorney for your case. Understanding fully the processes involved in an ERISA case takes time and frequent exposure. If this is your first time coming across this legislation, then you are bound to make mistakes while presenting your case.

Fortunately, Tucker Law Group makes hiring an ERISA attorney easy. We strive to accommodate our clients’ conditions as best we can, and we offer free consultations in person, over the phone, or via video chat. We also offer a State-of-the-Art, encrypted electronic portal which you can access online to see our file at any time of the day – 24 / 7. This portal is not only secure, but allows you to see what we are working on as your case develops. It also allows you to directly upload documents to your file.

Our team of VA disability attorneys handle appeals of service-connected disability claims to the Regional Office (RO), as well as appeals to the Board of Veterans Appeals (BVA) and to the U.S. Court of Appeals for Veterans Claims (USCAVC). This includes claims for VA service connection, increased ratings, and Total Disability based on Individual Unemployability (TDIU). We will help you in many ways, including:

• Filing your Notice of Disagreement (NOD)
• Dealing with all of the VA paperwork on claims we are handling;
• Helping you develop evidence to prove your claims, including referring you for medical exams, vocational evaluations, and working with you to get witness statements that support your claim;
• Helping you fill out any necessary VA forms;
• Submitting legal argument and legal briefs to the Decision Review Office (DRO), Board of Veterans Appeals (BVA); and
• If necessary, appealing your case to the veterans’ court – the Court of Appeals for Veterans Claims in Washington, D.C. – which handles appeals from the Board of Veterans Appeals.

The VA has a web page that explains its ratings schedule by condition. It is called the Veterans Benefits Administration References – Web Automated Reference Material System (WARMS). It is the online version of the federal regulations found in 38 C.F.R. Book C, Schedule for Rating Disabilities. VA’s rating schedule is adjuster each year.

Service-connected compensation for disability is a monthly benefit paid to veterans because of injuries or diseases that started while they were on active duty. It can also be paid if a condition is made worse by active military service. The veteran has to prove that the disability claimed is the result of the veteran’s military service. The VA then evaluates the medical evidence and assigns a disability rating percentage.

VA evaluates each service-related condition in 10% increments. For some conditions, the maximum level of compensation is 100%. However, for most conditions, the maximum level of compensation is less than 100%. The amount of benefits owed to the veteran are based on the percentage rating assigned. Each level that the VA assigns for a particular condition is based on the severity of the symptoms that the VA decides is appropriate at each rating level. The worse the condition, the more it impacts a veteran’s ability to work, and the higher the disability compensation rating percentage.

For a chart of VA compensation based on percentages assigned, click here:
https://www.vba.va.gov/bln/21/Rates/comp01.htm

The current VA Veterans Compensation Benefits Rate Tables show how much VA compensation is paid for percentage impairments rated at each level from 10% to 100%.

The Florida disability insurance attorneys of John V. Tucker handle many different types of Disability and Life Insurance Claims and lawsuits. These include:

• Individual Disability Insurance (sometimes abbreviated “ID”)
• Income Replacement Insurance
• Overhead Expense Insurance
• Short-Term Disability Insurance
• Long-Term Disability Insurance
• Bad Faith claims related to all types of Florida Disability Insurance benefits

Whether you obtained your disability insurance on your own, through work, or through a group other than your employer, our disability attorneys in Florida can assist you.

Whether you obtained your disability insurance on your own, through work, or through a group other than your employer, our disability attorneys in Florida can assist you.

• Does a mental or physical problem keep you from working? Yes.
• Has that mental or physical problem kept you out of work for 12 months (or do you think you will be unable to work for at least 12 months)? Yes.
• Are you able to do any of the jobs you have done in the last 15 years? No.
• Are you able to do any full-time work? No.

Keep in mind that a bad economy or getting laid off are not enough. You have to show that your mental or physical problems are what are keeping you from working.

If a person is receiving Social Security Disability benefits, SSA looks at SGA to decide if the person continues to be eligible after they return to work and complete a Trial Work Period (see FAQ – What is a Trial Work Period?).

How much money can you earn before you are engaging in SGA? In 2011, the Substantial Gainful Activity amount for persons with disabilities other than blindness is $1,000 per month.
What kind of work is “Substantial”? Substantial work involves doing significant physical or mental activities or a combination of both. It can be full-time or part-time. What does “Gainful” mean? Generally, it means work that you can get paid to do, even if you don’t get paid. However, Social Security usually looks at earnings to decide if a person’s work activity is SGA.

• Social Security’s own statistics show that claimants with lawyers win more often than those who do not have an attorney.
• An experienced Social Security Disability benefits attorney knows what has to be proven to win disability benefit claims.
• An experienced Social Security Disability lawyer knows what type of things Administrative Law judges look for when they conduct hearings on SSD and SSI cases.
• A Florida SSD and SSI attorney may be more familiar with the ALJs in Florida hearing offices located in Ft. Lauderdale, Ft. Myers, Jacksonville, Miami, Orlando, St. Petersburg, Tampa and Tallahassee.
• A disability attorney will likely be familiar with the procedures at the Office of Disability Adjudication and Review (ODAR) – the hearing office.
• A Social Security attorney can help create the evidence to win your case. Without an attorney, you are relying on your doctors to write down the necessary information, and they may not do that without an experienced disability attorney asking them the right questions.
• Without preparation from a knowledgeable attorney, you may not talk about important facts that could help you win your claim. In our law firm, all of our clients meet with our attorneys before going to court to discuss the kind of questions that may be asked at the hearing.

• Ask how many Social Security Disability and SSI cases the attorney has handled.
• Florida Social Security Disability attorneys may work out of several hearing offices. Ask the attorney how many hearing offices they cover. It is ok if your attorney covers the entire state, just make sure they are familiar with the Administrative Law Judges in your area.
• Make sure they will represent you on a contingency fee – 25% fees plus costs is standard.
• Ask how often they lecture on Social Security Disability and SSI. It is one thing to handle cases, but an attorney that is asked to teach other lawyers about Social Security has the respect of their peers.
• Ask how often they go to continuing education courses on Social Security Disability. There is always something new to learn.
• Ask how many Social Security legal organizations they belong to. Do they hold offices in those organizations (again, showing the respect of their peers)?
• If you also have a Short Term or Long Term Disability Insurance or an ERISA Disability claim, ask if they have experience with those types of cases. You want a lawyer who will not screw up your other disability cases, and someone who can help you with your other claims if they are denied.
• If you have a VA service-connected disability compensation case, ask if the attorney has experience with those types of cases.
• What is their policy on phone calls and meetings with their clients? If you hire them, can you get an appointment in a reasonable amount of time if you need to talk with them?
• Are they AV rated by martindale.com? Are they 10.0/Superb rated by Avvo.com?

• Experience. How long has s/he been practicing law? How many cases have they handled? You want to find out if they are just a dabbler, a generalist, or a “johnny come lately” new to the area – you do not want that. Look for an attorney who has years of experience handling a particular type of case.
• Ratings. Are they AV rated by Martindale Hubbel (the highest ratings for ethics and skill awarded)? Are they rated 10.0/Superb by Avvo.com? Have they been awarded SuperLawyers designation or received other recognition for their skill by peer attorneys?
• Areas of practice. What legal problems does s/he have experience in? Make sure you know exactly what kind of case you have and that your attorney knows how to handle it. For example, if you have an ERISA claim, you do not want a lawyer that knows insurance law, but has rarely handled ERISA insurance cases.
• Staff. Who else will I deal with during the course of my case? Are they a on-man band, or do they have a team of professionals who can support them in their effort to help you?
• References. Have past clients been happy with their legal service? Are testimonials available?
• Method of resolution. Does s/he favor mediation, alternate dispute resolution, settlements, or going to trial? Beware of settlement mills, firms that just like to settle cases. You want to someone prepared to take your case to trial if necessary.
• Results. Has the firm been successful with cases like yours in the past? We are not talking winning percentages here. That does not tell you much. You want to know how many times an attorney has fought your insurance company. How many times? How many claims have they gotten paid during the claim process, rather than after filing suit. It will be better for you if the attorney has gone up against your insurance company hundreds of times, rather than just once or twice, and you want to know how they have resolved cases and how they involved their client in the resolution.

John V. Tucker is always open to these conversations with potential clients. At our Disability and Life Insurance Law Firm, this initial consultation is free. Because we handle certain types of federal law claims all over the country (like ERISA and Veterans Compensation cases), we are happy to speak to you on the phone or by video chat if you cannot visit one of our offices in Florida.

For your Long Term Disability or Life Insurance claims, call us toll-free at (866) 233-5044 to discuss your case and any legal fees.