This article expresses the views of attorney Bonny G. Rafel Esq. View other articles by Ms. Rafel at
DISCOVERY IN A DISABILITY CLAIM: WHAT YOU NEED TO PROVE YOUR CASE
By: Bonny G. Rafel
There are two types of disability claims, one based on a contract that is obtained
personally by the individual, referred to as an “Individual Disability Policy” and one obtained
through a group benefit of some kind, referred to as a Long Term Disability, or “LTD” claim.
This discussion will focus on both types of policies, because it is always useful to discover the
insurance companies’ approach to the evaluation of claims. Did the company give equal
consideration to the evidence that supported payment, or were they bent on creating a record to
support a denial? How did the company fulfill its duty of good faith and fair dealing? For a
disability claim controlled by ERISA, you are usually looking to establish that a conflict of
interest poisoned the otherwise fair evaluation of the evidence. In order to resolve these
questions, you must obtain company documents. Only then will you know the true basis for their
decisions and be on your way to convincing the judge or jury that the company violated the
contract of insurance and in some cases, committed bad faith.
No insurance company is pleased when forced to produce internal documents, especially
those created years ago. In the early 1990s, insurance disability companies were suffering
financial woes caused by greatly reduced returns on premium dollars and a greater than expected
influx of new claims. Some sold their disability business to other companies; others revamped,
restructured, and refocused their approach from claims payment to claims management.
Companies directed their attention to financially strengthening their fortress, and in so doing set
termination ratios and goals. They proclaimed their glee in the “savings” realized by denials in
internal documents certainly never intended for our eyes. Th